Leaves of Absence and FMLA

LindaS

How would you handle a situation with an employee that refused to complete the FMLA paperwork? We have had this situation occur on several occasions where an employee requests time off, the reason for the time off appears to fall under FMLA but the employee refuses to provide the paperwork. What the employee wants is a "leave of absence" and doesn't want to use a vacation day, nor does he want to take any "points" under the attendance policy.

My thoughts are that I want to make sure EVERYONE completes the necessary paperwork because once one person is allowed not to complete it, everyone else will want to follow suit. In addition, I do NOT want to approve a leave of absence simply because he refuses to provide the paperwork and since he is choosing not to use a vacation day, the only option open is for him to take "points".

Does anyone see anything wrong with this picture? We are a unionized facility.

Theresa Gegen TX

The employee is absent without approved leave.

The absence can be held against him. I would tell the employee in writing that failure to turn in the paperwork will result in the employee being on an unapproved leave and the employee can be disciplined or terminated in accordance with company policy. Make sure you give him the full 15 days to turn in the paperwork that is required under the regs.

Then if the employee does not turn in the certification paperwork, discipline or terminate him in accordance with company policy.

Good Luck!!

Nrdgrrl

At my company, my area processed 980 leaves last year, and we had the same problem. We have a two pronged approach:

1. Policy states you must be on some type of leave if you are out more than 15 business days.

2. Under 15 days is up to them, but if they don't use FML, they are subject to the standard absenteeism policy and the time can be used against them on their review.

My interpretation of the FML reg is that as an employer, we have to offer them FML, not force it on them. If they don't want to take advantage, and you have given them the two day notice- too bad for them.

Also, the government will allow an employer to count the time as FML as long as you notify the associate. The paperwork is for your benefit, not theirs. We had to do this once. We just counted the time till they used it up and then terminated.

LindaS

Nrdgrrl -

I understand the reasons behind your policy but the situation I DON'T want to get into is employees taking FMLA leave without having the paperwork on file to back it up. We are a union facility and once you make an exception, you can be guaranteed that you will be forced to make it again, and again.

I informed this individual that he has the option of providing me with paperwork verifying that the reason he was out was FMLA and if he chose not to, his options were to either utilize a vacation day or accumulate points under the attendance policy.

The real kicker with this situation is that this day off is for his step-son and his wife, the mother of the child also works for us and she is taking a vacation day (at her choosing)!! I just can't understand the way some of these people think!!

Rockie

Make sure NRDgirl that you keep detailed records and copies of letters to the individual. I would suggest that you send certified copies of anything that you send this person so that you might have proof that they received it.

There has been some recent litigation in the area of FMLA where decision makers/supervisors have been sued personally in connection with FMLA.

You are on the right track....but keep good documentation.

Brad Forrister

While employees can request FMLA leave, designation of leave as being covered by FMLA is a decision for the employer, not the employee. Our Special Report on FMLA has a pretty good section on this.

I think the proper result might be to designate it as FMLA, present the employee with the paperwork, and if the employee won't sign it, you make a notation that the employee refused to sign and keep that with your records. But start that FMLA clock running.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers