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FMLA eligibility question

Library HRLibrary HR 37 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
So, I was reading today that an employee can turn down FMLA and use up their annual accrued leave in accordance with our leave policy. Does that mean that an employee with 12 weeks of saved leave can use that leave and then have a second FMLA occurrence within 12 months and get an additional 12 weeks of unpaid leave, leaving us with an unfillable position for 6 months?
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  • 6 Comments sorted by Votes Date Added
  • davidsdavids 427 Posts
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    Where did you read that? It is the employer's responsibility to designate leave as FMLA. We do not allow employees to decline FMLA coverage.
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  • Cheryl S SPHRCheryl S SPHR 238 Posts
    edited August 2015 PMVote Up0Vote Down
    I read that same article as well this week. It was a surprise to me as well. This is not the source I read, but it is about the case. http://www.bna.com/ninth-circuit-upholds-n17179882480/

    Thoughts?
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  • Library HRLibrary HR 37 Posts
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    That is what I thought but I get a bulletin that I send to my supervisors twice monthly that makes them aware of the types of legal issues that can occur. I think they should read about issues regularly so that when a situation occurs, they have some knowledge and think to bring the issue to me.

    This bulletin has a test your knowledge section that is stating that even if eligible for FMLA, employees can choose to use their paid leave instead. This is not what I had understood to be the case. I thought if the situation was such that FMLA was needed, medical certification was sent to the doctor and the decision was made based on what the doctor wrote.

    I hesitate to name the publication, but it makes me wonder what else I am passing along that is not correct.
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  • FunHRBankerFunHRBanker 562 Posts
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    Very interesting. I have always been told that FMLA is an employer designated leave, so if the facts we have received support the need for FMLA leave, we can designate it as such to protect ourselves from this exact scenario.
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  • davidsdavids 427 Posts
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    I was not familar with that case. I checked with two different employment attorneys with whom I regularly consult. I received similar responses from both. First, the facts of this case occurred prior to 2008 revisions to the FMLA. They believe the revisions do not support the Court's ruling (neither did the language in the original law). Additionally, both attorneys stated that the Court's pronouncement that an employee could reject FMLA coverage was dicta, not set law. Both advised us not to change our practice of the employer gets to designate leave as FMLA. You will want to check with your own attorney.
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  • Library HRLibrary HR 37 Posts
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    I did check. Attorney stated to continue as we have been and see if this is turned over on appeal. Apparently, this happens quit a bit in that District.

    Also, we are not in the District where this ruling occurred and since it hasn't been ruled on at the appellate level, it is not yet a game changer.

    Just going to keep doing it the way we have been and keep an eye and ear out for further changes. Thanks to everyone for their comments.
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