Frequently Asked Questions

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  • If I once filed a workers compensation claim, does that mean that I have a disability under the Americans With Disabilities Act?

    May be but not necessarily. One of the ways in which a person has a "disability" covered by the Americans With Disabilities Act is where they have a "record of" suffering from a disability, which means that he or she has a history of having a mental or physical impairment that substantially limits one or more major life activities.

    Some work injuries result in a permanent partial disability under Kentucky workers compensation law.  However, an injury or condition that results in a permanent partial disability under Kentucky workers compensation law may or may not be a "disability" under the Americans With Disabilities Act (ADA).

    Whether or not an individual suffers from a "disability" under the Americans With Disabilties Act (ADA) must be determined on an individualized, case-by-case basis. 

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in Kentucky workers compensatoin and ADA cases involving disability discrimination; contact him at 859-254-7076. 

  • Is a permanent partial disability under Kentucky workers compensation law also protected by the ADA?

    Not necessarily, although having a "permanent partial disability" under Kentucky workers compensation law may also mean that an individual also has a "disability" under the Americans With Disabilities Act (ADA).

    A "disability" is defined by the ADA in three ways as follows:

     

    1. a physical or mental impairment that substantially limits a major life activity
    2. a record of having a physical or mental impairment that substantially limits a major life activity
    3. being regarded as having a physical or mental impairment that substantially limits a major life activity.

    Whether or not an individual, even if they have a "permanent partial disability" under Kentucky workers compensation law, has a "disability" under the Americans With Disabilities Act (ADA) must be determined on an individualized, case-by-case basis.

    Lexington, Kentucky ADA lawyer Robert Abell represents individuals and employees in Kentucky workers compensation and ADA cases; contact him at 859-254-7076. 
     

  • If I have diabetes, do I have a "disability" under the Americans With Disabilities Act (ADA)?

    Diabetes is a "disability" under the Americans With Disabilities Act (ADA) when it substantially limits an individual's major life activities. 

    What are "major life activities" under the Americans With Disabilities Act? Basic activities that an average person can perform with little or no trouble, such as eating or caring for oneself.  For further discussion of what is a major life activity under the Americans With Disabiliites Act as well as its Kentucky state law counterpart click here.

    Diabetes can also be a disability when it causes side effects or complications that substantially limit a major life activity. Even if diabetes is not currently substantially limiting because it is controlled by diet, exercise, oral medication, and/or insulin, and there are no serious side effects, the condition may be a disability because it was substantially limiting in the past (i.e., before it was diagnosed and adequately treated). Finally, diabetes is a disability when it does not significantly affect a person's everyday activities, but the employer treats the individual as if it does. For example, an employer may assume that a person is totally unable to work because he has diabetes.

    These are general guidelines. Ultimately, whether or not an individual has a disability must be determined on an individualized, case-by-case basis.

    The EEOC has more information on diabetes in the workplace and the Americans With Disabilities Act: "Questions and Answers About Diabetes in the Workplace and the Americans with Disabilities Act (ADA)"

    Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in disability discrimination cases under the ADA; contact him at 859-254-7076. 

  • Is epilepsy considered a disability under the Americans With Disabilities Act?

    There is no easy, clear answer to this question, because whether or not an individual has a disability under the Americans with Disabilities Act must be determined on an individualized, case-by-case basis.

    Epilepsy like other conditions constitutes a "disability" under the Americans with Disabilities Act when it substantially limits one or more of a person's major life activities. Examples of "major life activities" include basic activities that an average person can perform with little or no difficulty such as walking, seeing, hearing, speaking, breathing, performing manual tasks, caring for oneself, learning, and working. "Major life activities" can also include the following: sleeping, concentrating, interacting with others, thinking, and reproduction.

    You can learn more about this question at http://www.eeoc.gov/facts/epilepsy.html.

    Again, the question of whether or not an individual has a "disability" under the Americans with Disabilities Act must be resolved on an individualized, case-by-case basis. The above are only general guidelines and you are strongly encouraged to contact an experienced and qualified employment lawyer to assess your situation.

    Lexington, Kentucky disability discrimination lawyer Robert Abell represents individuals and employees whose rights under the Americans with disabilities act (ADA) have been violated; contact him at 859-254-7076.

     

  • If I have a work injury, does that mean that I have a "disability" within the meaning of the Americans With Disabilities Act (ADA)?

    Not necessarily.  Even if because of a work injury you suffer from a "disability" under Kentucky workers compensation law, you may not have a "disability" under the Americans With Disabilities Act (ADA).

    A "disability" under the ADA is defined as follows:

     

    1. a physical or mental impairment that substantially limits a major life activity
    2. a record of having a physical or mental impairment that substantially limits a major life activity
    3. being regarded as having a physical or mental impairment that substantially limits a major life activity.


    Another factor is that a disability from a work injury may be only temporary or may not be severe enough to substantially limit a major life activity.

    Whether or not someone has a "disability" under the Americans With Disabilities Act (ADA) requires an individualized, case-by-case determination.

    Lexington, Kentucky workers comp lawyer Robert Abell represents individuals and employees in Kentucky workers compensation cases and disability discrimination cases under the ADA; contact him at 859-254-7076. 

  • How can an employee prove that he or she suffered from a "serious health condition" that entitled her to leave under the FMLA?

    Two courts have ruled that an employee can establish that he or she was entitled to FMLA leave based on a "serious health condition" by a combination of expert and lay testimony regarding their inability to work because of illness. In a recent case, Schaar v. Lehigh Valley Health Services, No. 09-1635 (March 11, 2010), the United States Court of Appeals for the Third Circuit ruled that the employee sufficiently established her entitlement to FMLA leave based on a "serious health condition" through a a doctor's note that covered two days of her absence and her own testimony that she remained sick for three more days.

     You can read a further discussion of the Schaar case at the Kentucky Employment Law Blog posting by Robert Abell, "FMLA Leave Entitlement May Be Established by Combination of Expert and Lay Testimony."

    If you believe that your rights under the Family Medical Leave Act (FMLA) have been violated, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076.

  • What is a "serious health condition" that qualifies me for FMLA leave?

    A "serious health condition" that entitles an eligible employee for leave under the Family Medical Leave Act, or, as it is commonly known, the FMLA requires the following:

       (1) because of illness the employee is unable to work more than three consecutive calendar days;

       (2) the employee is treated or examined at least once by a healthcare provider related to the illness; and,

       (3) the employee is subjected to a "regimen of continuing treatment" which may include a course of prescription medication.

    The requirements for FMLA leave due to a "serious health condition" are specifically set forth at 29 C.F.R. 825.114.  An employee will have to provide medical certification or information to show or substantiate the condition; the employer may require this.

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • If I get fired in Kentucky, am I entitled to my vacation pay?

    Kentucky law defines "wages" to include any compensation due to an employee by reason of his employment and includes "vested vacation pay." KRS 337.010. If your vacation pay is vested or accrued and is unused, you should be paid it if you are fired from your job in Kentucky. Just being fired does not necessarily mean that you don't have to be paid your vested vacation pay. 

    A fired employee must be paid the "wages" owed him or her within 14 days of their last day of employment or the next regular pay date, whichever comes later. KRS 337.055.

    Lexington, Kentucky wages and overtime lawyer Robert Abell represents individuals and employees seeking to recover the wages and overtime they've earned but not been paid; contact him at 859-254-7076. 

  • What damages can be recovered if my spouse is killed in a car wreck?

    If a spouse is killed in a car wreck, the estate of the deceased spouse can recover damages in a wrongful death lawsuit that may include the loss of their future earning power along with their funeral expenses. If medical bills were incurred between the time of the car wreck and the spouse's death, the estate may be able to recover those.  If the deceased spouse lived for some period of time between the car wreck and his or her death, it may be possible for the deceased spouse's estate to recover pain and suffering damages for that time period.  

    The surviving spouse may be able to recover what are called "loss of consortium" damages, which compensate for the loss of a spouse's companionship and services. The Kentucky Supreme Court ruled recently that such loss of consortium damages were recoverable by a surviving spouse in Martin v. Ohio County Hospital Corporation

    All cases are different and you should consult with an experienced personal injury and accident lawyer if your spouse has been killed in a car wreck.   

  • Is a loan officer exempt from overtime pay requirements?

    The Supreme Court largely resolved this question in Perez v Mortgage Bankers Association (March 9, 2015), where it upheld a Labor Department regulation that loan officers were not exempt from overtime.  This concluded five years or so of legal maneuvering and litigation on this issue. 

    But this decision will not necessarily apply to all loan officers. There will still be necessary some individualized consideration of the job and its actual duties and responsibilities.  That said, the court in Davis v. JP Morgan Chase ruled that loan underwriters, who approved or denied loans in accordance with detailed guidelines provided by the bank and did not exercise significant discretion, were not exempt from overtime under the "administrative" exemption. You can read the Court's decision here

    Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees seeking to recover wages and overtime they've earned but not been paid; contact him at 859-254-7076. 

  • What is the "professional" exemption to the overtime pay requirement?

    The application of any overtime exemption should be examined and determined on a case-by-case basis.  Misclassification of jobs as exempt from overtime is a common violation of federal and Kentucky state law.  That said, the court in Young v. Cooper Cameron Corporation ruled that "where most or all employees in a particular job lack advanced education and instruction, the exemption is inapplicable." 

    The court added:  "If a job does not require knowledge customarily acquired by an advanced educational degree -- as for example when many employees in the position have no more than a high school diploma -- then, regardless of the duties performed, the employee is not an exempt professional under the FLSA." 

    You can read the court's decision here

    Lexington, Kentucky overtime lawyer Robert Abell represents individuals and employees seeking to recover the wages and overtime they've earned but not been paid; contact him at 859-254-7076. 
     

  • Can a non-compete agreement be enforced against an independent contractor?

    The answer is maybe, perhaps probably. While the Kentucky Court of Appeals ruled in Kegel v. Tillotson, 2008-CA-001938 (October 30, 2009), that a noncompete agreement could be enforced against the independent contractor involved in that case, the enforceability of noncompete agreements should and must be examined on an individualized, case-by-case basis. There is not a hard and fast rule regarding the enforceability of noncompete agreements that can be applied across the board to any and all cases. It can be that they are enforceable partially but not enforceable partially.

    Lexington, Kentucky employment lawyer Robert Abell represents individuals and employees with regard to the enforceability of noncompete agreements; contact him at 859-254-7076. 

     

  • Can taking FMLA leave be used against an employee?

    No.  An employer cannot use against an employee the taking of leave under the Family Medical Leave Act (FMLA) as a negative factor in an employment decision such as a promotion, evaluation or raise. This has been recognized by court decisions and the federal regulations.

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Can my employer use my taking of FMLA leave as a negative factor in an employment action?

    No; it is a violation of the Family Medical Leave Act (FMLA) for an employer to use an employee's taknig of FMLA leave as a negative factor against the employee. This has been recognized by both court decisions and federal regulations. See Arban v. West Publishing Corp., 345 F.3d 390 (6th Cir. 2003); 29 C.F.R. 825.220(c).

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees whose rights under the FMLA have been violated; contact him at 859-254-7076.  

  • Is my employer allowed to retaliate against me because I took FMLA leave?

    No.  The FMLA prohibits retaliation by an employer against an employee because the employee has taken FMLA leave.  29 U.S.C. 2615(a)(2); Hunter v. Valley View Local Schools, No 08-4109 (6th Cir. August 26, 2009). 

    If your rights under the FMLA have been violated or you have questions about your rights, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076. 

  • Does the FMLA protect me against discrimination if I take FMLA leave?

    The Family Medical Leave Act (FMLA) prohibits discrimination against an employee because the employee takes FMLA leave. This is a basic point and was recognized by the court in Hunter v. Valley View Local Schools, No. 08-4109 (6th Cir., August 26, 2009).

    Lexington, Kentucky FMLA lawyer Robert Abell represents individuals and employees in cases under the FMLA; contact him at 859-254-7076. 

  • Can my employer use my taking of FMLA leave against me in a promotion decision?

    No.  The FMLA makes it unlawful for an employer to use an employee's taking of FMLA leave against them as a negative factor in a promotion decision. 

    If you have questions about your rights under the Family Medical Leave Act (FMLA), contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076. 

  • Can my employer use my taking of FMLA leave against me in taking a disciplinary action against me?

    No.  It is a violation of the FMLA for an employer to use an employee's taking of FMLA leave against them for purposes of taking a disciplinary action. An employer is not legally permitted to use an employee's use of FMLA leave against them.

    If your rights under the FMLA have been violated or you have questions about your rights under the FMLA, contact Lexington, Kentucky FMLA and employment lawyer Robert Abell at 859-254-7076. 

  • Can my employer count my days out on FMLA leave as absences under an attendance policy?

    No.  The FMLA makes it unlawful for an employer to count an employee's work days missed on FMLA leave under the employer's "no fault" attendance policy.

    The rule is basically this: "An employer may not consider an employee’s use of FMLA leave as a negative factor in an employment action." Hite v. Vermeer Mfg. Co., 446 F.3d 858, 865 (8th Cir. 2006).

    If your rights under the FMLA have been violated please contact Lexington, Kentucky FMLA lawyer Robert Abell for further information at 859-254-7076. 

  • Can you sue an insurance company for deceptive practices?

    Yes.  The Kentucky Consumer Protection Act allows an insurance company to be sued for deceptive or unfair practices that harm a consumer and/or his or her family.