Doctor folding arms with stethoscope

Opinion letter prohibits delaying FMLA leave, or designating additional leave

The federal Family Medical Leave Act assists workers who might need time off for health emergencies, either for themselves or to care for a family member. The law provides unpaid, job-protected leave for certain workers.

These include private employers that have at least 50 employees within a 75 mile radius, those employed by elementary and secondary schools and government workers at the local, state and federal levels. There are specific guidelines about who is covered and how long an employee must work to be eligible.

As an HR professional, employees have asked to use paid, or unpaid, time off in lieu of FMLA. Managers have also asked not to designate short periods of time off as FMLA. Neither of these practices are allowed. “Employees cannot waive, nor may employers induce employees to waive their prospective rights under FMLA,” according to the act.

A recent U.S. Department of Labor (DOL) opinion letter makes it clear that “an employer may not delay designating an FMLA-qualifying leave or designate more than 12 weeks of leave (or 26 weeks of military caregiver leave) as FMLA leave.” So employers must know when the FMLA applies and take care how they designate an employee’s time off.

Can you get paid for being on FMLA?

That’s not to say that an employee cannot use paid time off while on FMLA. An employee may request, or an employer may require, the employee to use paid leave time, sick days or vacation time during an FMLA event. This paid leave time would run concurrently with an employee’s FMLA leave.

An employer may also provide more medical or personal leave time than the FMLA allows. However, that time should not be classified as FMLA. All types of leave time offered should be detailed in a written policy and applied consistently to employees in similar situations.

When can you use FMLA?

In some circumstances, employees may need to take FMLA intermittently or as a reduced schedule. Employers should request medical documentation from their employee’s physician indicating the time(s) the employee will be away from work. Employers also can expect an employee to make a reasonable effort to minimize disrupting the employer’s work schedule.

A manager has responsibilities under the FMLA. If an employee needs time off and qualifies for FMLA, the employer must notify the employee about his or her rights and responsibilities under the law. A manager may become aware of an employee’s FMLA situation either directly or indirectly and must offer this guidance regardless. It is imperative that supervisors and managers understand their responsibilities to the employee and to the company.

For more information about FMLA and applying time off policies consistently, contact your HR professionals at BCN Services.

Sue Kester, HR Manager