Employee Doesn't Want FMLA

Aletha

We have an employee who has already missed several days from work due to a potentionally serious/critical medical condition that the doctor's still have not actually diagnosed. She may be facing more exploratory measures before pinpointing her medical problem. She does not want to take FMLA at this time. My thinking is that we have already allowed her to take off work for doctor appts, days for not feeling well, days to pursue medical attention (without pay after exhausting paid time off) and also without FMLA paperwork to go toward her qualified 12 weeks. My question is, can we make her fill out FMLA paperwork because if she doesn't I feel like we're setting an example for other employees if we do not allow them to do the same thing in a similar situation? Please advise. (p.s. If I posted this twice it was by mistake)

Don D

If the employee is potentially in critical condition, I wouldn't be hassling her with any FMLA paperwork. I would though, write her and advise that she is conditionally placed on FMLA as of __ __ __ which was the beginning date of her absences related to her undiagnosed medical condition. I would enclose the FMLA forms and advise her further that FMLA is a job protection statute for the employee's benefit so that she won't view it as punitive. There are other things you should advise her of as well in your letter. The critical point from the employer's perspective is to get the clock started so that you won't have all these related absences during this undefined time followed by another 12 weeks of absence. If all this turns out not to be FMLA, then you should adress the absences under your attendance policy. Caution and patience are today's buzzwords.

Theresa Gegen TX

You need to check your policy first, to see if you require the employee to use FMLA at the same time as other paid leave. If you do, then Don's suggestion is a good one. You may also want to explain to the employee that putting her on FMLA is a benefit to her: It protects her job so that the absenses will not be counted against her. If the company does not put her on FMLA, she could be subject to discipline or termination for excessive absenteeism.

Once an employee understands that, the employee should be Ok with the FMLA. Under the law, it is not her choice, it is the company's choice, but you may want to stress to her that it is to her benefit to be on FMLA.

Good Luck.

morrisg

There's a basic principle here, employers do not need the permission of their employees to be placed on FMLA (Havender v. Norton 4 WH Cases 2d 560 (N.D.N.Y. 1997)

We often unilaterally place our employees on FMLA, the key here is to notify them that you are doing this, the DOL has a form just for this purpose at their web site.

System

Morris G,

I've been to DOL looking for the FMLA notification form. (1/30/03) What is the name or the number of the form. Thank you!

bsa

DOL Form WH-381 "Employer Response to Employee Request for Family or Medical Leave"

DOL Form WH-380 "Certification of Health Care Provider"

WH Publication 1420 " Your Rights under the Family and Medical Leave Act of 1993"