Legal Question in Medical Leave in Kansas

Re: Termination because of excessive absences due to Family leave act

This could fall under either the FMLA or the ADA.

Under the FMLA and employer must allow an employee not only to use all accrued paid medical leave but up to 12 weeks of unpaid medical leave to care for the a medical condition of a family member or their own. There is some dispute as to whether that 12 weeks allowance is subject to a calendar year allowance or a usage allowance. Though it has been settled that where an employer has set policy regarding usage ahead of time that that policy will generally rule. There may also be state guidelines regarding this matter.

Under the American's with Disabilities Act your daughter may have better luck. It's important to know that the FMLA and the ADA are NOT mutually exclusive so she can discuss usage of either of these claims. But under the ADA if she qualifies as "disabled" then she would be allowed latitude to recover under that statute. The employer has no duty to inform the employee of which policy to use and she would need to investigate this matter on her own, through an attorney. The definitions of disability are very broad and your daughter may be considered disabled under the statute even though here condition is not one which would commonly be considered a disability.

A caveat, an employer is not required to hold a position open indefinitely for a disabled employee. But where an employee needs time off as a reasonable accommodation for a disabling condition the employer must allow that leave where the leave is not for an indefinite period.

Your daughter should get in touch with a lawyer in her locality to examine the issues surrounding her particular situation. The Kansas and Kansas City bars have some very helpful resources for locating an attorney skilled in the particular area of law (labor and employment).

Regards and best wishes,

Roger Traversa

email: [email protected]