Can an employee "decline" FMLA protection?

I am fairly new to this HR role and am trying to understand my responsibilities as the Employer when it comes to FMLA.

I either heard it at a seminar, or read, that it is the employer's responsibility to identity when an employee [I]may[/I] have an FMLA covered event--whether the employee has specifically expressed it or not. As a result, I have asked supervisors to alert me when they have an employee out 3 consecutive days. At that point I'll call for additional information to see if it qualifies for FMLA. With that being said, I get questioned "why bother" if the employee in question has plenty of leave time to cover the absence(s). As soon as I think I know the answer (protects the employee and the employer) I get challenged and then wonder, "well maybe they're right".

So can an employee "decline" FMLA protection? If so, what would the process of declination be? Simply not complying with my request for medical certification?

If the absence is OBVIOUSLY due to a covered FMLA event i.e. major surgery requiring a week in the hospital, can I/[I]should[/I] I waive the medical certification requirements and designate the absence as FMLA and then just require a Fitness for Duty certification?

I have had employees that I've known to have medical procedures or ongoing treatment and when I bring up FMLA, they'll say "that's ok, I don't need that." Is that really their option?

Thanks in advance for your help.


  • 5 Comments sorted by Votes Date Added
  • FMLA protects the employee, but it also protects the employer. If the employee has plenty of leave, that may seem ok. However, what if events keep cropping up? They might run out of leave and still have 12 weeks available to them through FMLA protection. Your company may be ok with that, but once the precedent is set it is hard to go back. What if the next time it is an employee who is not such a great employee and it is causing you hardship to cover their job while they are out so long?

    It is up to the employer to decide if the event qualifies for FMLA. You make the designation, and the employee then complies. You should have written policies about it, and require employees to submit documentation when requested. If they decide to 'decline' by not submitting paperwork, they are guilty of not following procedures and should be reprimanded accordingly. It may seem silly, especially if it is a good employee, but you are setting your company up for a big fall if you don't set up policies and procedures and then stick to them.

    I strongly recommend that you require paperwork when it looks like an FMLA event, that you be the one to make the decision whether it is FMLA qualified or not, that you discipline employees who do not cooperate with your procedures, and that you have your policies in writing.

    Good luck!


    P.S. Wecome to the forum!
  • Thank you for your comments. You have pretty much reiterated what I have been saying. I appreciate the reinforcement.
  • Ditto what Nae said. We never give the employee the choice. It is a protection also for the employer and if we arent consistent, they we can be up for a lawsuit. If the employee does not comply, I sent out a certified letter giving them a deadline to return the required paperwork. If they still don't return the paperwork, I send out another letter informing them their employment is termed.
  • One of the most awkward things you can ever do is try to "retro" an FMLA because things didn't proceed the way you expected. The employee may have plenty of sick time, or they may tell you they don't want or need FMLA, or you may expect the absence to be too brief to warrant the paperwork. Do it anyway, because stuff happens.
  • vheller,

    Welcome to the Employers Forum. Please let us know if there is anything else we can help you with and be sure to chime-in with your thoughts on other posts, too.


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