Employer Forces Designation of FMLA Leave

bobo

I have an employee who wishes not to have her leave designated as FMLA (she is concurrently on CA Workers' Comp. leave for job-related injury). I want to designate her leave as FMLA leave concurrent with WC leave. Even thought she qualifies for the leave, she does not want to take FMLA leave. Do I, as the employer, have the discretion to designate it as FMLA leave anyway?

Brad Forrister

Whether to designate leave as FMLA leave is up to the employer, not the employee. And you can designate paid workers' comp leave as FMLA leave, assuming it meets the FMLA tests. Here's an excerpt from our Arkansas Employment Law Letter:

Accordingly, whenever an employee is injured on the job and needs time off to recover, you should determine immediately if the employee also is eligible for leave under the FMLA. If the employee is eligible, you should notify him in writing that the leave is covered under the FMLA so that the leave time may be counted against his 12-week FMLA entitlement. If you do not run the employee's comp leave concurrently with the FMLA leave, he still may have the full 12-week FMLA entitlement available to use after his or her comp leave expires.

If the employee has been on workers' comp leave without being placed specifically on FMLA leave, you should send notice to him immediately so that the FMLA clock starts running. You may then designate the leave only from the date written notice is provided to the employee. You cannot retroactively designate the time spent on workers' comp leave against the FMLA entitlement.


The interplay of FMLA with workers' comp is complicated - which is one reason we've got a Special Report on it. If you're a law center member, look at "FMLA,ADA & Workers’ Comp: Navigating the Treacherous Triangle."

Brad Forrister
M. Lee Smith Publishers

Hatchetman

California's law (Family Rights Act) which covers medical leaves also provides that it is the employer's right to designate qualifying leave as FMLA/FRA.

bsa

I thought it [u]was[/u] the employers responsibility to designate FMLA leave. If you don't designate it as such, then you (the employer) lose! What do you lose? --the opportunity to designate FMLA leave. What are the consequences? -- you may have to grant FMLA leave after this WC issue is over, aha!!! she gets more time away from work! (Makes you wonder why they even bother to get a job??)

If your policy states that FMLA may run concurrent with WC, then it is not her choice. It's the same with PTO running concurrent with FMLA, if the policy says that's the way it is --- so be it.

Last thought -- keep your documentation straight.
Very last thought -- you're in that other place -- California, check your state statutes.

Gar

For what its worth, I'll chime in with everyone else. You (the employer) most certainly can designate the leave as an FMLA event as long as it passes the FMLA test(s).

Rockie

Employees have the mistaken idea that "they" get the choose whether leave is FMLA or not. If the leave qualifies under FMLA guidelines, then the employer designates the leave as such. Now...if the state law (California or wherever) gives more "rights" to the employee than the federal law dictates, then the employer is obligated to go by what the state dictates. From what I understand about California law, they are much more liberal in granting family leave, so the rules and regulations governing the designation of this leave may also be much more liberal. Again, check your state laws to make sure they don't supercede federal law.

Ruskanen

How can you designate FMLA for an employee if they haven't complied with Federal Guidlines of turning in documentation of their condition? Can you force an employee to use FMLA time if they haven't turned in any documenation of their condition? I know that sometimes our employees don't want to mess with FMLA paperwork and instead of requesting it, they will use vacation time for doctor's appointments or outpatient surgury.

Rockie

You, as the employer, have the potential of getting into a lot of trouble with the DOL if you have occasion to discipline an employee for absenteeism in what should have been a qualifying event for FMLA and it was not designated as such. For example, when FMLA was first implemented, I had a supervisor who wanted to terminate an employee for excessive absenteeism. The employee indeed, was absent excessively. What the supervisor did not tell me was the employee had a child who had a chronic health condition. When she was terminated, she filed a complaint with DOL that we had violated her FMLA rights even though she had never requested FMLA and took her pto leave for the absences.

What the DOL told me was that the employer (or supervisor) should have known that these absences was due to a qualifying event for FMLA as she had informed her supervisor that she had a sick child.

Now, anytime I have an employee who I know has a qualifying event, then they are put on FMLA regardless of whether they turn in the paperwork or not.

Ruskanen

If we know that an absence could qualify for FMLA, we give the employee an information sheet, and have them sign a paper that says, "I have been notified that I am elegible for FMLA and if I want to apply I should see HR." Don't you run into problems with people taking advantage of FMLA? If I worked at your company couldn't I just tell you that I was having surgury and needed a week off and then go on unpaid vacation? How do you keep people from abusing FMLA time off?

Gar

[font size="1" color="#FF0000"]LAST EDITED ON 12-14-01 AT 08:39AM (CST)[/font][p]Try this. Designate the event as one qualifying under the FMLA. Now, the ball is in the employee's court to come up with the medical documentation. If he/she fails to do so, undesignate the leave and discipline the attendance problem accordingly. Don't mention failure to comply with FMLA.

awilliams

[font size="1" color="#FF0000"]LAST EDITED ON 12-11-01 AT 02:38PM (CST) by jrobb (admin)[/font][p]Everyone has posted some very good advice here. I thought I would chime in my two cents since I did a lot of research while writing the MLSP Executive Special Report, FMLA Leave: A Walk Through the Legal Labyrinth.

1. Yes, it is the employer's prerogative to designate FMLA leave and such leave can be designated against the employee's wishes. Designating leave as FML will protect the employer from having an employee accumulate too much time off.

2. Yes, it is a good idea to have medical certification from the employee before you designate the leave as FMLA leave. The regulations give guidelines for the medical certification, but do not require that you have the medical certification prior to designating the leave.

3. You are able to designate the leave "conditionally" until such time as you receive the proper certification. Under the FMLA regs, the employee has 15 days to give you the medical certification. If they do not return it within that time frame, you can tell the employee that they are unable to return to work until they have that paperwork. Keep in mind, the employee's doctor can deny FMLA certification, but the employee must give you documentation of the denial. Once you tell the employee that they cannot continue to work, or be paid, until they turn the paperwork in, you can bet they will do it immediately.

For more FMLA questions and answers, check out the Special Report at [url]http://www.hrhero.com/special.shtml#fmlaleave[/url]. This report is free for Employment Law Center members or $47 for nonmembers.

Anne Williams
Attorney Editor
M. Lee Smith Publishers
author of [link:www.hrhero.com/special.shtml#fmlaleave|FMLA Leave: A Walk Through the Legal Labyrinth]

Jarrett

When you "conditionally" designate FML, the employee does not return paperwork in time frame, FML 12 weeks runs out; what happens if the employee brings in the paperwork? or doesn't bring in the paperwork?
Can the employee then be terminated?
Employee is also on Workers Comp.

awilliams

I'll give you my standard laywer answer first: you should discuss the facts of your case with your employment counsel to make sure you are not overlooking anything. I can't give specific advice on this forum, plus I am not familiar with your state laws or your state workers compensation arrangement.

That being said, here is my general feeling: No way should you conditionally designate FMLA leave for the entire 12 weeks! I was talking about conditionally designating for 15 days or so, until the employee gets the paperwork in to you. No paperwork = no FMLA protection. You are free to discipline just as you would for any other AWOL employee. Keep in mind, though, that the employee may qualify for an ADA accommodation (of time off) or may be protected from discipline by your state's workers compensation law. I am no WC expert, I just know enough to know when to start doing some research.

Also, you should be aware that there is great contention in the courts about whether the FMLA regulations allow employers to retroactively designate leave as FMLA. In fact, there is a case pending before the U.S. Supreme Court on this issue. If you are a subscriber to your state's Employment Law Letter or Law Center, or are a subcriber to either of your employee benefits newsletters, AND we have your e-mail address, we will e-mail you an alert when the Supreme Court decides this case and give you some tips on how to proceed. In order to be assured that you will receive the alert, please call our customer service department with your e-mail address: (800) 274-6774.

I hope this helps!

Anne Williams
Attorney Editor, MLSP

Jarrett

Thanks! This is the ee's 2nd round of FML this year, ee submitted paperwork first go around, just being stubborn this time. Doctor had already written him out until next visit. It's just that the FML would expire prior to rolling into the next year. Used your earlier advice and he agreed complete cert.
We're checking on the WC. Appreciate the timely response!