You don't understand - they don't want FMLA

Everything I read regarding FMLA seems to assume that employees want leave to be designated as FMLA. Many of mine don't. They have 15 sick days per year (we are a city) and they want to take all their sick leave and not have it count as FML. That way, they still have their 12 weeks of protected leave. We do not have an attendance policy that designates number of absenses because employees are simply entitled to accrue and use Sick Leave according to the Sick Leave policy. We, the administration, obviously WANT to designate the FML and start the 12 week clock running. So, some employees do everything they can to not cooperate (sketchy doctor's note, etc.). I would like to send everyone that is out more than three sick days a letter stating that their time off will be designated as FMLA (usually I know, from what they've told their supervisor, if they likely qualify for FML. Of course I don't know for sure until medical cert form is completed - but they won't do it. So, can someone please tell me definitively whether or not I am legally OK with designating FML without medical certification? Thanks. Sorry if I sound frustrated.

Comments

  • 17 Comments sorted by Votes Date Added
  • I think the short answer to an employer being able to designate FMLA w/o medical certification, is NO.
    I think many of us in HR forget about how FMLA came into existense. FMLA is a mandated employee benefit for employees who choose to use it. Congress approved this law in 1993 to enable employees to have time off for specific reasons. The law was enacted to protect employees from employers who wrongfully discharged an individual with a health problem. FMLA is not employer-friendly, but it was never intended to be.
    Employers currently struggle with how to impose FMLA on employees; when the law exists for employees to use-------if and when they choose to use it. As employers we control how, when and why employees have time off and I just don't lose sleep over a person who has a legitimate illness and needs to be away from work, but who chooses to not elect FMLA!! Do we force employees to apply for worker's compensation or unemployment comp benefits??? Probably not. It's there for them to exercise, IF they choose to do so. I don't see much difference with the FMLA issue. Should someone not want to elect FMLA, then they must comply with the employers other pertinent policies. It's difficult enough dealing with FMLA when a person requests it. Mandating it seems to me to be like whipping yourself!@#$
  • Elizabeth -- I understand your dilemma and I agree with Down-the-Middle that this law is NOT employer friendly. As more and more court cases get heard on this subject the law becomes even more unfriendly. The name of the game is "damage control". You follow your policies, document that you followed your policies, and pray for divine intervention. I don't think you can force FML on an employee; but if you do a really good job of explaining the "benefits" of designating a qualified illness as FML, maybe they will jump at the chance!
  • I know this sounds stupid - but - what are the benefits to the employee if they have enough sick time to cover the absence? The job protection benefit isn't necessary since they have adequate time so what should I focus on when talking to them?

  • You're right: employees are usually only interested in designating FMLA leave when they're out of paid leave. I'm not sure I agree with the previous posts saying that you can't designate FMLA leave against an employee's will. It is certainly in your interests to do so. The regulations specifically say that FMLA leave can run concurrently with paid leave. If you don't have a written policy to this effect, you should probably get one. How to designate leave when the employee isn't cooperating is another question. I'll have to think on that one.

    The main benefit of FMLA leave to employees who have paid time off available is that the absences can't be counted against them under an absenteeism policy.

    So let's say you have a written absenteeism policy under which employees are only allowed to be absent from work so many days per year. This is different from a paid leave policy. An employee takes off a week and a half of paid leave to care for her sick son. She has three weeks of paid time off per year and doesn't want the time characterized as FMLA, so you let it go. Several months later, after she has used up all of her annual leave time on things like vacation and personal days, her grandmother dies and the employee asks for a few days of unpaid leave to go to the funeral. By this time, she's probably in trouble under your absenteeism policy. If she had designated the first leave (to take care of her son) as FMLA, you would not be able to count those absences against her and discipline or terminate her for excessive absences.

    Of course, if you don't have a policy of disciplining people for excessive absences, this scenario isn't relevant. Anyone else want to take a stab at it?
  • My opinion, as a HR Practicianer not legal advice, is that we can require an STD leave or vacation to be designated FMLA, if we have sufficient information at the time of request to know that is would or probably should be covered by FMLA.

    >The main benefit of FMLA leave to employees who have paid time off
    >available is that the absences can't be counted against them under an
    >absenteeism policy.
    >
    >So let's say you have a written absenteeism policy under which
    >employees are only allowed to be absent from work so many days per
    >year. This is different from a paid leave policy.

    >Of course, if you don't have a policy of disciplining people for
    >excessive absences, this scenario isn't relevant. Anyone else want to
    >take a stab at it?


    I agree with this respondent. An absenteeism policy (Attendance Management is a better term) is very different from a Short Term Disability (STD) Plan. The latter is a Welfare Benefit Plan. The former is a Management Tool. Two totally different things, and you need both of them.

    If you check the FMLA reg's carefully you will notice two relevant facts.
    1. They allow you to require FMLA leave to run concurrent with paid leave you provide under benefits plans and

    2. The required notice period ("two business days") generally is insufficient to get a Health Care Provider's certificate back.

    This would imply that you are intended to make the decision of whether to designate a leave as FMLA without having the Health Care Provider's information. I do this by conditionally designating a leave as FMLA, "contingent upon verification of your Health Care Provider." If the employee refuses or fails to return the Health Care Provider certification I then recind the FMLA designation for lack of supporting evidence.

    The USDOL's FMLA eLaw Advisor Program tells employees that it is their responsibility to provide medical certification when their employer requires it. [url]http://www.elaws.dol.gov/fmla/wren/er.htm[/url]

    You stated that you usually can determine whether an absence would be FMLA covered by what the employee tells the supervisor. This is exactly what the FMLA reg's comptemplate. This is why a simple notice to a supervisor of sufficient information to qualify a leave request as FMLA covered triggers your notification requirement and starts the clock. The :"two business days" for making a determination runs from when the employee makes the request for time off to their supervisor, not when your get a Health Care Provider Certificate.


  • Whoa, DB. There is a BIGGGGGGG benefit to the employees for them to use the FMLA. You stated that they have enough time so the job protection isn't a big deal. Although this sounds right on the surface it is actually wrong. True, they can take the time off under the sick leave policy, BUT if they do not elect to use the FMLA, then the absences can be counted against them. If they take the sick leave and use it under the protection of the FMLA, then they can not be disciplined for the sick leave.

    I hope this helps.

    Paul
  • I disagree with down the middle. It is the employer responsibility to designate FMLA. Any absence of more than three consecutive days with medical documentation qualifies as FMLA. Also don't we also count Workers' Comp. time off as FMLA?
  • I definitely think you should have the concurrent policy of running sick time with FML leave. Otherwise, you may have an employee out there with a massive amount of time off available to them. I always encourage employees to use FML for their own protection and some semblance of job guarantee. I remember I had a "visit" from a DOL investigator once because an employee had been terminated for excessive absenteeism and it was never mentioned to me that the employee had a sick child, etc. and that she might qualify for FML. But...she did mention it to the supervisor and after I talked with the supervisor, he said she had, in fact, mentioned this fact to him. FML was never offered to the employee. The DOL representative stated it was the employer's responsibility to offer it to the employee, so I learned my lesson on that one! I've had employees tell me all kinds of stories - they don't think it's "fair" that they have to exhaust their leave while on "maternity" leave and then don't have the time to take vacation and they don't think it's fair they don't get paid for holiday time when they are on unpaid leave, etc.
  • Two questions.

    1. Do you have a written attendance policy?

    2. If an employee is absent 15 days a year, is he/she considered to have satisfactory attendance?
  • We do have an Attendance Policy at our hospital. We do require employees to use benefit time during the FMLA (if it is for Employee Illness, they must use sick time and if it is for Family or Bonding, they must use Vacation). In our Policy Manual and Employee Handbook we state this. We also have a section on Disciplinary Action related to the FMLA. The employee can be subject to disciplinary action up to and including termination if he/she fails to provide certirfication for the leave within 15 days after he/she has received the Certification form or fails to provide recertification of the medical necessity for the leave within a reasonable time (not to exceed 15 days) after the request for it (unless "it is not practicable for the employee to do so despite the employee's diligent, good faith efforts" as stated in the FMLA Regulations)

    You do have a right to require the return of the certification form.....and actually, I don't think it's much different from asking an employee to provide a physician's statement regarding their need to be out for any medical reason. It's just good practice. Surely you don't grant 3 months out of work without some medical statement to substantiate the need for the time. The concern I have with the approach some have mentioned about just allowing them to use their sick time is that they still have entitlement to 12 weeks of FMLA in addition. They also have job retention rights for that extra time which can impact your operations.

    Isn't FMLA fun? NOT!
  • It is my understanding of the regulation that it is the responsibility of the employer to designate the leave as FMLA eligible or ineligible within two days of becoming aware of the necessity of the leave. The employer decides what the policy is, not the employee.
  • We are also a public entity. Our FMLA policy specifically states that FML will run concurrently with applicable paid leave. FMLA leave is designated in writing provisionally by the HR dept until the medical certification states that it is not FMLA eligible. I have yet to see a cert. come back that is not eligible.

    In the early stages, our employees also did not want to use FMLA leave, due to their generous sick leave banks and wanting to save it for later. I always point out the job protection benefits first to the employee. It is now common practice and generally accepted.
  • I have been following this item with interest as I have also been embroiled in the same controversy since we require employees to use FML for Lost Time Work-Comp Injuries. Obviously, by doing this, they had less FML time for other personal health problems.

    The FML plan gives Employers the right to designate these absences as well as vacation time as FML whether the employee wants it or not. However, Employers must state this in their own policies. Again, other features such as notifying employees within 2 days also apply.

    Even our Union president had to drop his protest when he checked with his higher-ups. For our Union people, in most cases job security is built into the contract, so in most cases FML-type protections are still there even if their FML expires.

    And of course, ADA has to be taken into consideration before we move someone out.







  • Elizabeth, I noticed you said "you're a city." I assume you mean that you work for a city.

    If that is the case, your city code or ordinances problably have a provision that says that any payout of city funds must be authorized or approved by the appropriate manager or authority (which may include a supervisor). Usually, this includes benefits payable under the city's sick leave plan or vacation plan or whatever paid accrued benefit time it has for employees. If that is the case, start from there.

    If the employee is out for more than 3 days require verification if she wants it as paid sick leave.

    FMLA does allow the employee to choose paid or unpaid time. However, also, under FMLA, the employer can designate that appropriate accrued time benefits be used for FMLA approved leave rather than unpaid FMLA time as well as declare the qualifying FMLA leave to be FMLA leave.

    So, you're not completely "up the creek without a paddle" in being forced to allow the employees to declare sick leave, for example, not to be under FMLA. You do have some leverage.
  • I have noticed there are a variety of opinions about what the FMLA regulations mean. Is there a source (besides asking a specialist attorney) where I can read for myself this information. I currently have a copy of the DOL publication on the "Federal Regulations Part 825" WH Publication 1419. It would help me if contributors would cite where they got the information on which they offer an opinion. Like for "requiring employees to use paid and unpaid leave for FMLA" you could cite "825.207b" as to where in the regulation you found that information.
  • The federal regulations regarding FMLA and other federal employment laws (FLSA, e.g.) are found in the Code of Federal Regulations, volume 29. You can access Title 29 at the DOL website or go to [url]http://www.access.gpo.gov/nara/cfr/[/url] and do search for the particular provision you want ("825", for example, is a section or "part" of Title 29).
  • Most of you responders seem to be public. Just be glad you don't have a union. Our contract requires that the Ee save at least two weeks of vacation for use during annual vacation shutdown periods; thereby negating the company's desire to designate joint FMLA and paid vacation time off during the FMLA absence.We can require the salaried staff to take concurrent paid vacation time during FML and can require the union member to take it concurrent if and only if it is for one of the reasons allowed other than personal illness. What a tangled web we weaved when we voted for our legislators.
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