Requiring FMLA
bjp7596
1 Post
Before I ask my question, please take note of the following:
- Employer is in the State of Wisconsin
- Employees accrue sick leave on an annual basis
- Employees can substitute sick leave while on FML
- Employer requires medical certification for FML
Recently we have had two employees who have gone out for what could potentially be FML-qualifying events (one with a serious health condition, the other to care for a parent with a serious health condition). In both instances, the employees were notified that they were eligible for FML and the appropriate paperwork was given to them. In both cases, the employees indicated they would rather use their sick leave than FML time.
Employees that do this could potentially be off work using sick leave for x number of weeks, and then after the sick leave runs out take unpaid FML for up to 12 weeks.
My question is whether we can inform the employee that the time off will be counted against the annual FML allotment regardless of whether they actually "apply" and are approved for FML (after receiving the appropriate medical certification). I believe because we require medical certification, if an employee refuses to submit the medical certification then we cannot count the time as FML, even if we know the event if FML-qualifying. Is this correct?
I appreciate any guidance/suggestions you can provide. Thanks!
Comments
FMLA designation is, within the requirements of the statute, entirely up to the employer. You can force sick leave (including worker's comp and LTD) to run concurrently with FMLA time. However, there are certain requirements about what you can ask for in terms of documentation or or certification. Specifically, if you force concurrent use, you cannot ask for anything that you would not ask for in the case of the non-FMLA, paid leave. My own experience has been that most people don't want to be out the money and there is no reason to force paid leave to run concurrently with unpaid FMLA. In any event, if your policy doesn't state that paid leave will be run concurrently with FMLA, you can't force it anyway.
The typical scenario goes something like this:
Mr. Employee, the Company has become aware that the cause of your absence is related to what may be a qualifying serious health condition under the Family and Medical Leave Act. Blah blah official boiler plate etc. This designation is contingent upon woof woof.
"Ms. HRperson, I don't really want FMLA leave."
That's where things start to get difficult because the Company is entitled to certification and it is the employee's problem (with certain caveats thrown in) to get it and to get it timely.
The only issue here is whether or not your policy specifies that FMLA will run concurrently with paid leave.
[quote user="Redbudpt"]I would also remind the employee(s) that if he/she choose not to submit the required medical certification he/she also lose the FMLA protection for the leave.[/quote]
However, if there is no real penalty (e.g., plenty of time left within the standards of your attendance program), then they may not care. YOU might still care because if they lose the protection of FMLA at no real penalty to themselves, they're also still not burning up their FMLA time.