//--> Overland Park Employment Lawyer, Family Medical Leave Act Information
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Do you have a claim for an FMLA violation?


A general rule in many states is that an employment contract is terminable-at-will,which means that either the employer or the employee has the right to terminate the employment at any time for any reason or no reason at all, without liability to the other for doing so. The Family Medical Leave Act ("FMLA") modifies this rule in that covered employers may not terminate a person who provides notice of a need for leave that qualifies under the FMLA.

Pursuant to the FMLA, qualified employees are entitled to a total of twelve (12) weeks of leave during any twelve (12) month period. Such leave may be taken for personal medical reasons, for the birth or adoption of a child, or to care for a child, spouse or parent who has a "serious health condition." Leave granted may consist of unpaid leave. If an employer provides paid leave for fewer than twelve (12) workweeks, however, the additional weeks of leave would qualify as FMLA leave. An eligible employee who takes leave under the FMLA is entitled to be restored to the same or an equivalent position upon returning from leave. But, to be entitled to be restored to his or her former position, the employee must be able demonstrate that they can perform the essential functions of that position.



Some common questions about the FMLA are as follows:



1. Who is an eligible employee?

One who has worked at least 1250 hours in a year at a worksite with at least fifty people in a 75-mile radius.

2. Who is an "employer" within the meaning of the act?

Any "person" in an industry affecting commerce who employs fifty or more employees for each workday for twenty or more weeks. For purpose of this question, "employees" include individuals acting in the interest of an employer as well as public agencies.

3. What is a person? Does that mean me individually as an employer?

The FMLA does not actually specifically define "person", however it references other federal statutory provisions that define a person as, "an individual, partnership, association,corporation, business trust, legal representative, or any organized group of persons." The majority view is that individual liability does not exist, but there is a split on the issue. What this means is that generally speaking, your boss often won't be found individually liable. There are exceptions to this general rule however, and Secretary of Labor has previously upheld individual liability in certain situations.

4. Do you have to be married to qualify as a "spouse?"

The FMLA defines "spouse" as a husband or a wife. However, courts have taken great liberty when ruling on what qualifies as a husband or a wife, and have considered common law marriage as a qualifier in this regard.

5. What is a serious health condition?

This is a highly contested area of litigation, and as such, the answer is far from clear. Please see below for a more thorough discussion of this question.

6. What leave must an employer provide an eligible employee under FMLA?

As noted above, an employee may ask for twelve (12) weeks of unpaid leave in any twelve (12) month period. Request for leave may be continuous meaning the employee doesn't return to work for an extended period of time, such as after a major surgery or intermittent, meaning an employee make take somewhat sporadic leave. A common example of sporadic leave might include an employee who has a serious health condition, but that condition is not necessarily constant and continual, but rather flares up from time to time. In this type of scenario, and employee could request leave for a day here and a day there when the serious health condition flares up.