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Employee says he’s not using FMLA? Note that for the record

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in FMLA Guidelines,Human Resources

Some employees may want to save up their FMLA leave for an anticipated event like a birth or upcoming surgery. Even if they’re eligible for intermittent FMLA leave, they may request that they not be docked for the time off.

If you agree not to charge the time off against FMLA leave, make sure you document the request.

Then feel free to treat the absences as you would any other absence under your attendance policy.

Recent case: Jack Bell, who suffers from excessive ear wax, was granted intermittent FMLA leave for flare-ups that kept him from working. He used some intermittent leave, but then began saying that his absences should not be FMLA leave. The employer took him at his word, noted his requests and marked the absences “non-FMLA.”

Before long, Bell had enough absences to reach the threshold for termination under the company’s no-fault attendance policy. His employer terminated him and he sued, alleging that he had been denied the right to FMLA leave.

The court dismissed his case. It reasoned that the employer had no reason to doubt Bell’s contention that the earlier absences didn’t qualify for FMLA leave. (Bell v. Dallas County, No. 3:08-CV-1834, ND TX, 2010)

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