Can you "make" them?

MsLady · March 2003

I am currently working at a not-for-profit organization. It has come to my attention that we usually "make" an employee go on FMLA after 3 consecutive missed days. I was under the impression that FMLA was an employee choice. (I am probably showing my experience with this question!) Your input is greatly appreicated!

Kari

vmiller MO · March 2003

If the absence is a FMLA absence, for example, a serious health condition of the employee, the employer can designate the absence as FMLA leave without the concurrence of the employee. Some employers do this and some notify the employee that the absence may be a FMLA and aske the employee if the employee wants FMLA leave. However, you would be within your rights to designate the days off as FMLA leave povided that the reason for the absence qualifies as a reason for FMLA leave. (an employee off for 4 days to attend a court proceeding would not qualify as a FMLA leave and you could not designate it.) You should also refer to 29 CFR Section 825.301 as to the notice that the employee must receive.

Insurance Mgr IN · March 2003

May I tack on 2 questions to this discussion?

1.) Our employees are required to use vacation and sick days during an FMLA absence. A few have refused to provide medical certification because they prefer to take vacation for an illness or surgery and maintain another 12 weeks of FMLA job protection. Since their vacation time is not subject to disciplinary action, there isn't an incentive to use the vacation as FMLA. Is a medical certification required to designate FMLA leave? Can an employer designate FMLA time when they know the employee is off work or on vacation for a serious health condition even if the employee does not provide the medical certfication?

2.) If an employee returns a medical certification late - after the required 15 days - can the employer deny FMLA leave?

Thanks for your help!

Don D · March 2003

(1) Yes, you can designate if you have sufficient knowledge to show that the absence meets FMLA definitions. (2) Yes you can deny it; but, you may also want to consider each situation on its merits. Some situations suggest that it's practicable to extend the time period due to circumstances such as misplaced paperwork, medical clinic recalcitrance or other extenuations. If it's pure stubborness you can refuse it just as you can if it could easily have been in advance but was not.

Insurance Mgr IN · March 2003

Thanks for your reply, Don. That was very helpful!

denisek · March 2003

We also require all employees to use FMLA when they are out for a serious health condition for more than 3 days. I would have it no other way. Why would you not want to require it and give them the option to use a paid time off bank (vacation, sick etc) first which could be many many days off and then come back and ask for FMLA which could give them an additional 12 weeks off. This would create a hardship for any business.

Can you "make" them?

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