Designating FMLA Leave When the Employee Has Other Plans

There has been lot of discussion recently about designation of FMLA and what happens if an employee declines FMLA and asks for some other leave first, saving the FMLA for later.  As an employer, setting up a scenario where an employee is out for leave after leave is not a good one for running a business.  You do want to accommodate employee needs for medical treatment but you also need a certain number of people doing certain jobs and it takes time to train each one.  So what do you do?

There was a recent article posted on a site called FMLA Insights that I thought was particularly well balanced between the camps that say not to designate unless the employee wants it and those that say designate it no matter what.  Here is an excerpt from that article:

“Here, you have two options:

  1. Deny FMLA leave. If the employee has not returned complete and adequate medical certification within 15 calendar days, and he has not engaged in any good faith efforts to return it, you have the right to deny FMLA leave and subject the employee to your attendance policy, which often will treat the absence as unexcused.
  2. Designate the absence as FMLA leave. For some employers, denying FMLA leave above will not result in an unexcused absence because the employee simply can use accrued paid leave without any consequence. For other employers, they simply want to start the FMLA clock running so that the employee exhausts FMLA leave as quickly as possible and return to work. . . .

If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.  29 C.F.R. 825.300(d)(2)

Simply put, you do not need medical certification in your hand to designate leave. As the regulations state, if you have enough facts based on the employee’s notice to establish that the employee requires leave that is covered by the FMLA, you can designate it as such. No other questions asked or information needed. Notably, under 29 C.F.R. 825.305(b), you can always ask for certification later ‘if the employer later has reason to question the appropriateness of the leave or its duration.’”

The good news is that this scenario does not happen often because most employees want the job protection offered by FMLA.  You do need to assess whether the employee may be entitled to a reasonable accommodation for a disability under the ADA or MHRA or leave under the employer’s own policies.  And you should only designate time out as FMLA leave (despite an employee saying otherwise or not handing in the paperwork) if you are quite confident that the reason for the leave falls under one of the FMLA protected categories.

This article is not legal advice but should be considered general guidance in the area of employment and corporate law.  Rebecca Webber is an employment attorney; others at the firm handle business and other matters.  You can contact us at 784-3200 (telephone).  Skelton, Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.