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I don't want to use FMLA........

afenderafender 12 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
I have an issue where an employee applied for FMLA and was approved for an intermittent leave for the serious health condition of a parent.

The employee decided that she did not want to count a day she took off to be with her terminally ill parent as an FMLA day. She just wanted to use a vacation day. Using vacation time is optional at our company.

My understanding is that if we know the employee is out for an FMLA issue, we have to count it toward the FMLA allotment. Especially since the employee applied for and is approved for FMLA. So, in this case, I would count the day as an FMLA day even if the employee does not want to count it toward the allotment. Right?
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  • 6 Comments sorted by Votes Date Added
  • mushroomHRmushroomHR 583 Posts
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    What does your policy say? An employee does not choose to use or not use FML. If they qualify for FML you count is as FML. Vacation and FML can run concurrent depending on your policy.
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  • BalloonmanBalloonman 972 Posts
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    Pay the day as vacation, count it as FMLA. This is not something the employee can pick and choose.
    My $0.02 worth.
    DJ The Balloonman
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  • Don DDon D 9,834 Posts
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    But the larger answer to your question is NO, because the FML act was intended to result in eligible workers having certain approved time off with job protection. In the final analysis, even if you do not call it FMLA or count it as FMLA, and no negative consequence is attached to it, the feds will not give a hoot that you did not count it. Negative consequences, however, include counting it as an attendance issue, applying any sort of discipline to the absence, causing the employee to not have perfect attendance that she would have otherwise had, and on and on. Another downside to not counting it would be inconsistency, one employee-situation with another. I would certainly count it myself; but your question was "do I have to?" It's sorta like "Do I have to have a doctor's certification if I know the employee is really sick?" The answer is no you don't, but you'd be wise to have one and be consistent.
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  • marcmarc 3,126 Posts
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    It is not the EE's choice, it is the employer's choice. You do not have to run FML concurrent with vacation time, but many employers do. Don D has made the good points, I especially like the one about avoiding inconsistent treatment. You know, letting a manager have more liberal FML treatment than another staff person. That can quickly lead to negative consequences and cause the opening of the checkbook.
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  • NrdgrrlNrdgrrl 116 Posts
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    Additionally, that means she would have an "extra" FMLA day since that one wasn't counted. While one day is no big deal, think long term.

    I take 12 weeks for my baby, but don't want to count 2 of them and use my vacation grant instead. You would end up giving me 14 weeks.
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  • afenderafender 12 Posts
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    Thanks for the input. I am trying to prove to the Plant Superintendent that the employee does not have a choice in this. I also discussed with him the issue of the 12 weeks plus vacation plus other absences but he felt the employee should be able to decided whether or not to count the days as FMLA. I told him the employee made that decision when the employee applied for FMLA, turned in the Certification, and received the approval document.

    Now I can maintain consistency between all employees. THANKS!!
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