Q. What happens if an employee takes sick or vacation leave and we want to run out his
A. First, go through the practical issues. Explain the benefits to him of taking FMLA leave versus non-FMLA leave, as he may be misinformed. Also explain that if you subsequently find out that his leave qualified under the FMLA, it will be designated retroactively as FMLA leave.
Second, use the few protections provided in the FMLA. If you have reliable information showing that his leave qualifies under the FMLA, send him a letter to that effect. Explain the basis for your preliminary conclusion and inform him that his leave will be designated as FMLA leave pending his return of the certification. If he returns no certification, you may inform him that his leave will be delayed (although you should not do this indefinitely).
If he returns a questionable certification, you can obtain second and third opinions at your expense. However, under current regulations, you can’t treat leave as FMLA leave if the employee never produces a completed certification supporting FMLA leave.
Finally, you may decide to let the employee “win” the issue in the short term. The primary benefit to him will be a few additional weeks of unpaid leave that year. That loss of productivity to the company pales in comparison to the time and expense of litigation.
Note: If faced with this situation, consult an attorney who can guide you through the minefields of the FMLA.
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