Required use of FMLA

lorilori

I have a mananger who thinks use of FMLA is optional. He would rather grant his reports some leniency...extending "extra" paid days or unpaid personal time (example- for an employee needing a week for the birth of a child), even though we do not have any personal leave. Employees would rather not request FMLA & "preserve" their paid time to take later, as designating time off as FMLA will mean I use their paid time before granting unpaid time. Company President says...show him in print where it says an employee's leave must be designated as FMLA. All of the FMLA articles, etc are written much more from the aspect of the employee's rights and requests for leave. Can someone point me to a reference that specifically lays out that it is not the employee or manager's option?

davids

I don't believe the regulations say, in those words, that it is not the employee's option. The regulations say that the employer has the obligation to designate leave as qualifying. Our unions regularly try to negotiate language that provides employees the choice to elect FMLA or not. We regularly so no. Allowing employees to have the option presents several issues:

1. Possible discrimination if one manager allows employees the option and another manager does not;
2. You will never be able to hold an employee accountable for his/her attendance. If the employee takes significant leave, including intermittent leave, and you do not designate it as FMLA, the employee will still have the full 12 weeks of entitlement. If you try to disadvantage the employee in any way for the undesignated leave (e.g. discipline, withhold a bonus, etc.), he/she can come back and say it was qualifying leave so you should have designated it.

If you want to allow the employee the option of choosing to use leave or take the time unpaid, you can do so. However, even if taken as unpaid leave, I would still designate it as FMLA.