Can an employer make an employee utilize FMLA?
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I have an exempt employee who has a medical condition requiring multiple doctor visits each week, she schedules appointments at all times during the day. Can I ask her to make her appointments for the first/last appointment of the day? Also since this has been going on for 6 months and there is no end in sight as she has a chronic medical condition, can I force her to take FMLA to cover the absences?
Comments
Assuming that the employee qualifies for FMLA leave (and your organization is covered by FMLA), you can designate the leave as FMLA leave -- designation of qualifying leave is at the employer's discretion -- the employee has no say in the matter. Since this has been going on for 6 months and presumably the employer has not certified or designated any past leave taken, whether or not the employer can do so now (retroactively) depends on whether retroactive designation will cause the employee any "harm." Whether or not the employee is harmed is a highly fact specific inquiry - so I don't think anyone can answer that for you with knowing the full set of facts. You should definitely start designating all future leave time taken (note, FMAL requires notice of eligibiilty, designation and rights and responsibilities under FMLA -- use the federal forms for FMLA at http://www.dol.gov/whd/fmla/index.htm
FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or for recovery from treatment or recovery from a serious health condition. The 2009 FMLA regulations state that employees who take intermittent leave for planned medical treatment have an obligation to make a reasonable effort to schedule such treatment so as to not disrupt unduly the employer’s operations. The previous version of the regulations had said only that the employee had to “attempt” to do so. Making appointments at the beginning or end of the day is usually a good compromise, assuming tha tthe doctor has available appointments at those times.
This answer made me think of a related question -
What if the employee does not provide the requested medical certification - but continues to take time off associated with the medical condition? The employer has provided the appropriate notices, but the employee seems to want to "save" the FMLA time for a potential surgery that may (or may not) happen "down the road."
The employee qualifies for FMLA leave (and we are covered by FMLA) and the employee has taken off an average of 32 hours per month for the last 4-5 months. We provided the appropriate notices in May when we say how close she was coming to being out of paid leave time. Her supervisor hadn't mentioned the amount of time off to anyone. Can we designate the leave (back to the date of notice) as FMLA without having a medical certification just based on the number of times she has been out for the same condition?
What if the employee does not provide the requested medical certification - but continues to take time off associated with the medical condition? The employer has provided the appropriate notices, but the employee seems to want to "save" the FMLA time for a potential surgery that may (or may not) happen "down the road."
The employee qualifies for FMLA leave (and we are covered by FMLA) and the employee has taken off an average of 32 hours per month for the last 4-5 months. We provided the appropriate notices in May when we say how close she was coming to being out of paid leave time. Her supervisor hadn't mentioned the amount of time off to anyone. Can we designate the leave (back to the date of notice) as FMLA without having a medical certification just based on the number of times she has been out for the same condition?
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Employees don't get a choice to "save" FMLA. You, the employer, are REQUIRED to provide FMLA rights and protections to employees. That means that you deem the leave FMLA. If you require medical certification for all others, then require it for her. Even if she does not submit certification, if you have any knowledge of why she is out and it could be FMLA, then you can still deem it FMLA and count it.
You can not back date FMLA since you (the company) knew why she was out. That would be viewed as "harming" the employee. But deem it FMLA as of today, send her notice, send her the health care certification and tell her that as a condition of employment she needs to return it. End of story.