Published Date: 03/24/2014
By Pat Rountree
What should you do when an employee would qualify for protected leave under the Family and Medical Leave Act (FMLA) but doesn’t want to take it as FMLA? To employees, it seems that they should be able to use available vacation or sick leave if they have it to cover the time off that they need without having to use their FMLA. However, the FMLA regulations specifically state that it is the employer’s responsibility to designate FMLA when they have sufficient information to determine that it is covered. [Note: See section (d) on http://j.mp/fm-po and http://j.mp/fm-de.]
There are times when the employer does not know an employee was absent for an FMLA-covered reason until after the fact (the employee may take vacation for the absence and not tell the employer or the supervisor may not relay to HR that the employee was out sick). In these cases, retroactive designation may be made as long as there is no harm to the employee. For more information on this, and an example of harm to the employee, see (d) and (e) on the second link referenced above.
From a practical standpoint for employers, designating a qualifying absence as FMLA eliminates administrative headaches and potential discrimination, and ensures that employees receive the appropriate protections under an FMLA-covered absence. It also potentially limits employee time away from the job by combining paid time off with FMLA.
Please contact a member of CAI's Advice & Resolution Team with your FMLA questions at 919‑878‑9222 or 336‑668‑7746.