To Deny or Not to Deny

KP68

Pretty simple question, I hope: If an employee is out five days for medical reasons and uses his/her own sick time to be paid for this, however fails to return the FMLA Certification, what is the employer's advantage to denying this under FMLA?

If the employee had sick time available to use (and we do run this concurrent w/FMLA if it qualifies), what is the incentive for the the employee even bother turning it in if he used sick time?

We won't consider it unauthorized because he used his sick time. Would this be more a case for future absences?

Just playing Devil's Advocate because I know that I will be asked this. Thanks!

cthr

Not all 5 day absences are FMLA related. I would say if you don't have any documentation that says it is a serious health condition, it's not FMLA.

Why was the employee out?

KP68

Thanks for the input....I'm not really questioning whether or not it'll be FMLA at this point (since we don't even have forms yet), I'm really wanting to know what the employee would lose by it NOT being designated as such, as he has alread posed this to me. I did explain what FMLA is for (that his job would be protected if approved), but he used paid sick time for the absence and if it's not approved, why should he even turn the forms in? Hope this clarifies my question. I know my question seems pretty 'basic', and even though I'm relatively familiar w/FMLA, I'm struggling with defending this one.

Don D

I prefer to look at it not as 'what would the ee lose' but rather, why is it to the company's advantage to designate it FMLA. FMLA is, by definition, front loaded to benefit the employee, in that it is a job protection statute. The only benefit the employer can milk out of FMLA is to designate days and burn them until they are gone, to somehow limit the number of days an employee is not available to do the company's work. In instances where the ee has not been forthcoming with the required paperwork, I would not let it go at that. If I had enough information at hand to reach a conclusion that an event is FML, I would so designate, regardless, thereby burning those days and removing them from the pool of days available to the employee, whether he likes it or not. The Act establishes considerable rights for the employee. But, the employer can maintain certain elements of control and this is one of them. Back to your question as to what he might lose. It's very possible that he could lose his job if there is an attendance policy in place that will not 'safety-net' him during this absence.

KP68

Good point...but let's assume that by him using his available sick time that there will be no "negative action" taken for this time off, what's the point? Could it be as simple as stating that this time out, if it is FMLA, could not be "used against him" if there are future attendance issues? If we determine it's not FMLA, then could it possibly be addressed for future attendance problems?
To be honest, I'm leaning towards not designating it as FMLA as I don't know for sure if it should fall under it or not (wisdom tooth extraction??) Hence, the request for documentation.

Don D

A non-complicated impacted, unerupted wisdom tooth extraction(s) would not be FML unless an overnight hospital stay resulted or there would be an absence from work of more than three days as a medical necessity. But, again, the 'point' is that an employee has at most, a maximum of 12 workweeks of entitled leave during a 12 month period. Starting the clock and reducing that entitlement is always to the employer's advantage. One hour charged is one less he can take in the future. If he becomes an abuser or even a legitimate user, you will be glad later that you managed those hours and days.

marc

You have received good input from Don, the FML time is a "burden" placed on the Employer.

The Employer is responsible for designating an event as FML eligible and can do so with or without the medical certification. This is not a choice of the employee, it is the choice of the employer. If the EE disagrees, they can produce the medical certification that supports their position.

The whole point, as Don stated twice above, is to start the clock. It may not be advantageous to the EE, but if it is truly an FML event then they will have used a portion of the whole 12 weeks, which is a huge chunk of time out of a work year. The employer must continue to pay insurance benefits as if the EE were working, another benefit for the EE.

Many employers require the use of paid time-off banks to run concurrent with the FML - which will keep the overall leave within the 12 weeks rather than adding all of the sick and vacation time on top of the 12 weeks. In my opinion, this is good business sense.


Hope this helps, good luck.

KP68

Yes, this all has been great advice - and believe me, I know the benefits of starting the clock ticking. I was mainly playing devil's advocate by posing my q's from an employee's perspective as to why the forms should even be turned in, if sick time was used (to run concurrent)and what would happen to him if he didn't turn them in. It was a question that I had a difficult time answering, to be perfectly honest.

Turns out this is more than like not going to be an FML event anyway, not that I have the forms to determine this, but based upon what I do know now, it won't be.

Thanks again for all of the advice.