Deposition questions you may be asked in your Family & Medical Leave Act (FMLA) employment lawsuit

If you have filed a lawsuit against your current or former employer alleging violations of the FMLA, the employer’s attorney will take your deposition. The attorney will question you about your eligibility for leave and about the process of taking leave and returning to work.

The Family and Medical Leave Act of 1993 (“FMLA”) requires employers covered by the law to grant eligible employees up to 12 weeks of leave during a 12-month period of time to:

  1. care for a newborn or newly placed adopted or foster child;
  2. care for a seriously ill spouse, parent, or child;
  3. care for the employee’s own serious health condition;
  4. care for a covered service member with a serious illness or injury incurred in the line of duty on active duty; or
  5. take care of “any qualifying exigency” arising out of the fact that a covered military family member is on active duty or called to active duty status in support of a contingency operation.

Furthermore, a covered employer must restore eligible employees (except certain key employees) to the same or equivalent position following the leave, and maintain the health benefits of eligible employees during the leave.

At your deposition, you can expect to be asked questions similar to the following:

  • During your employment, did you request a leave of absence from your employer?
  • On what date did you request that leave?
  • Did you request that leave orally or in writing? If orally:
    • Why did you not make your request in writing?
    • Who did you notify that you wanted to take a leave of absence?
    • Was she a supervisor?
    • Was she a co-worker?
    • Why didn’t you submit your request for leave of absence to the human resources department?
  • Did you tell your supervisor that you were specifically requesting FMLA leave?
  • If not, why not?
  • Before requesting leave, did you review the employee handbook section that outlines FMLA leave?
  • Before requesting leave, did you consult with anyone concerning whether you qualified for FMLA leave?
  • When you requested leave, did your employer ask that you obtain some certification from your physician concerning the need for the leave?
  • Even though you did not provide any medical certification, you were permitted to take leave?
  • When did you become aware that you would need a leave of absence?
  • How soon after that did you make your request?
  • Did you request the leave as soon as it was practicable?
  • I will show you Exhibit 1. Is this your request to take a leave of absence?
  • Did you write Exhibit 1?
  • Did anyone assist you in preparing Exhibit 1?
  • To whom did you deliver Exhibit 1?
  • When?
  • Where?
  • How did you deliver Exhibit 1?
  • When you gave Exhibit 1 to your supervisor, did you have any conversation with her about Exhibit 1?
  • Please tell me everything that you recall was said by both you and your supervisor concerning Exhibit 1?
  • Was there anyone present at the time of this conversation?
  • Did you explain the reason for the leave at that time?
  • What did you say?
  • How long had you worked for your employer at the time that you requested your leave of absence?
  • Do you know approximately how many hours you had worked for your employer in the year preceding your request for leave?
  • Do you know how the employer determines FMLA eligibility?
  • Does the employee handbook explain eligibility?
  • Does the employer use a calendar year for FMLA eligibility?
  • Is eligibility based on your hire date?
  • Does the company use a “look back” calendar, based on how much leave you have taken looking back from today?
  • Did you request the leave of absence due to your own health condition [or for the birth or adoption of child; health condition of parent, child or spouse]?
  • What was that health condition?
  • What symptoms were you experiencing at that time?
  • Did those symptoms prevent you from performing the essential functions of you position?
  • Were there normal daily activities that you were unable to perform due to that health condition?
  • What were those daily activities?
  • How did your symptoms interfere with your ability to perform those activities?
  • Did any physician provide medical care to you for that health condition?
  • How many times did you see that physician?
  • What was his diagnosis?
  • What was his treatment and follow-up care?
  • What medications, if any, did he prescribe?
  • What recommendations did he make concerning your work activities?
  • Did he make any recommendations as to how long you should take leave?
  • Did you speak with anyone at your employer while you were on leave?
  • Who did you speak with? When? What was said?
  • Did you advise your employer that you were ready to return to work?
  • Who did you speak with? When? What was said?
  • Did you tell your employer there were any limitations on your return to work?
  • What were those limitations?
  • How long were those limitations to remain in effect?
  • Did your employer tell you to return to work?
  • If not, why not?
  • What happened when you returned to work?
  • When was your employment terminated?
  • That was how long after you took your FMLA leave?
  • What were you told was the reason was for the termination of your employment? The employer’s attorney will then ask questions specific to the stated reason for your termination. For example:
    • Isn’t it true that you did miss 10 days of work within a three-week period in March 2006?
    • And that was 6 months after you took your FMLA leave?
    • Isn’t it true that missing those days of work violated your employer’s absence policy?
    • You were given an oral and a written reprimand concerning your absences before you were fired, correct?