Family Medical Leave Act

Charles W. Miller & Associates

The Family Medical Leave Act (FMLA) was enacted in 1993 to allow employees to take time off work without pay for certain family or medical reasons. In order to qualify for FMLA, an employee has to have worked for the employer for 12 months over the previous seven years and worked 1250 hours during the last 12 months. Employers that have fewer than 50 employees who have worked 20 weeks during the last year are not required to provide leave under this act. According to the Department of Labor website, qualified employees are eligible for 12 weeks of unpaid leave for the following reasons:

  • for the birth and care of a newborn child of the employee;
  • for placement with the employee of a son or daughter for adoption or foster care;
  • to care for a spouse, son, daughter, or parent with a serious health condition;
  • to take medical leave when the employee is unable to work because of a serious health condition; or
  • for qualifying exigencies arising out of the fact that the employee’s spouse, son, daughter, or parent is on active duty or call to active duty status as a member of the National Guard or Reserves in support of a contingency operation.

An additional 12 weeks of leave are available to certain relatives of injured service members.

FMLA pertains to several different types of situations, as shown by recent cases in the news. In Southern California, an executive chef for a country club went into septic shock after surgery and was in a medically induced coma for two months. While he was ill, the country club replaced him with another chef. Under FMLA, the country club was required to keep his job for him until he returned. Late last week, the U.S. District Court agreed with Mr. Caupain, the chef, and granted summary judgment in his favor. This means the case will move forward to the damages phase without a trial to determine if Mr. Caupin was wrongfully terminated under FMLA. The trial to determine damages is scheduled for January 2012.

When a woman becomes pregnant and delivers a baby, she is entitled to 12 weeks of unpaid leave after the child is born. In the case of Laura Makowski v Smith Amundsen, Ms. Makowski claimed she was wrongfully terminated while on leave after the birth of her child in December 2007. While she was out, the firm contacted her in February 2008 and informed her that her position had been eliminated. While the firm stated she was terminated because of restructuring, the head of human resources told her she was terminated because she became pregnant and took medical leave, and her position was filled by another employee. She also told Ms. Makowski that others had been terminated for taking medical leave. The U.S. District Court ruled against Ms. Makowski because the comments made by the head of human resources were not admissible since she was not directly involved with the termination. Without this information, there was no correlation between her taking medical leave and being terminated. The Appeals Court disagreed with the District Court and ruled the comments from the head of human resources were admissible because she was consulted in the decision and was directed to contact outside counsel before the termination was made. The case was sent back to District Court to be argued and tried with the testimony of the HR head admitted as evidence.

William Shaffer was allegedly terminated from his position as director of leadership communications at the American Medical Association after telling his employer he would be having knee surgery and would need four to six weeks of leave to recover. Before his employer knew of his upcoming leave, another employee was set to be terminated instead and Mr. Shaffer was to maintain his position. An email from his supervisor to the chief marketing officer after Mr. Shaffer’s request for leave stated that he should be let go instead of the other employee since he was going to take leave anyway. The Appeals Court ruled last month that Mr. Shaffer’s case should go to trial, stating “The FMLA forbids an employer from interfering with an employee’s right to take leave and return to his job and also from retaliating against an employee who claims benefits under the statute.”

In the above cases, FMLA protected an individual dealing with a health issue, a new mother caring for her new baby, and an employee facing surgery and a substantial recovery. If you have been in one of these situations or another one in which your job should have been protected and you were wrongfully terminated, the Kentucky employment attorneys at Charles W. Miller & Associates can assist you by reviewing your case and filing a claim.


Ruling in wrongful termination suit favors former Thunderbird chef; The Desert Sun; Blake Herzog; November 8, 2011 
Appeals court allows FMLA suit against American Medical Association; Business Insurance; Judy Greenwald; October 31, 2011
Makowski v Smith Amundsen; United States Court of Appeals, Seventh Circuit; November 9, 2011

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