Placing Employee on ‘Involuntary’ FMLA Leave Is Perfectly Legal

When an employee calls in sick with an apparently serious ailment, you can place that employee on FMLA leave, even if he or she never asks. If you reasonably believe she has a serious health condition, you can start the 12-week FMLA-leave clock ticking.

Notify the employee of this preliminary FMLA designation, and start the medical certification ball rolling.

Take note, however, that applying involuntary leave will invoke the FMLA’s many protections, including the right to reinstatement and protection from retaliation.

Recent case: When Coca Cola employee Jennifer Willis called in sick, she mentioned that she was pregnant. The company didn’t hear from her for several days, so it fired her under its “no call/no show” policy.

Willis filed an FMLA suit, claiming Coca Cola placed her on involuntary FMLA leave and then unlawfully fired her. The court dismissed her case, saying the company couldn’t have placed Willis on involuntary leave because she didn’t provide enough information to show that she had a serious condition.

The court went out of its way to make clear that involuntary FMLA leave is legal. It noted that the Department of Labor has stated that, “So long as the employer is a covered employer, the employee is an eligible employee, and the reason for the absence meets one of the conditions described in the definitions of ‘serious health conditions’ under FMLA, the employer may designate (and so advise the employee) and count the absence against the employee’s 12-week FMLA entitlement, even if the employee has not requested that it be counted as such.” (Willis v. Coca Cola Enterprises, No. 05-30047, 5th Cir., 2006)