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Not every employee wants to take FMLA leave, and employers sometimes don’t designate paid time off as FMLA time. But an employee doesn’t have to request FMLA leave in order to be protected by the law.

In fact, if employees give their employers enough information to trigger knowledge that the time off is probably FMLA-protected leave, employees get all the benefits of the law—even if no one ever mentions the FMLA.

That means you can’t refuse to reinstate the employee when she returns. Doing so would amount to interference with the right to FMLA leave.

Recent case: Christine Slanaker worked as the controller for a small electronics company. She was responsible for cash management, preparing financial reports and payroll. When she became pregnant, she went to the company owner and asked for maternity leave that included part-time work from home after she gave birth.

The company agreed to let Slanaker work from home 20 hours per week and draw the remainder of her time as vacation days. Shortly before the scheduled leave was to end, she was called into the office and told her job had been eliminated due to financial problems.

Slanaker sued, alleging that by discharging her, the company violated the FMLA reinstatement provision. The company argued that she had never asked for, nor been on, FMLA leave. Therefore, it wasn’t required to reinstate her.

The court disagreed. Because pregnancy is a serious health condition under the FMLA, when Slanaker told her employer she wanted to take maternity leave, she was notifying them that her time off was covered by the FMLA. She did not need to utter the magic words “FMLA leave.” It is the employer’s responsibility to designate the leave as FMLA time once it knows time off is covered by the FMLA.

Now the employer will have to prove it would have terminated Slanaker even if she had not taken protected leave. (Slanaker v. Accesspoint Employment Alternatives, et al., No. 07-11204, ED MI, 2008)

Final note:
Employers that want to limit time off should make sure they designate eligible absences as FMLA leave even if the employee is taking paid leave.

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