How to assign FMLA leave to a reluctant employee — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
  • LinkedIn
  • YouTube
  • Twitter
  • Facebook
  • Google+

How to assign FMLA leave to a reluctant employee

Get PDF file

by on
in FMLA Guidelines,Human Resources

Q. What happens if an employee takes sick or vacation leave and we want to run out his FMLA leave? We think he has a qualifying condition, but he won’t get medical certification because he doesn’t want the time used for FMLA. — R.W.D., Georgia

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. 

Leave a Comment

Previous post:

Next post: