HR Update - FMLA: You Can't Make Me - or Can You?
Monday, April 15, 2019
Posted by: Alyce Ryan
Written by: Christine V. Walters, JD, MAS, SHRM-SCP, SPHR, FiveL Company
On March 14th the U.S. Department of Letter (DOL) issued an opinion letter that answered a question that has challenged courts and employers. Here's the scenario, an employee's time off from work qualifies for FMLA-covered leave. But the employee tells you s/he does not want the time designated as FMLA leave. Do you, the employer, have the right to designate the time as FMLA leave, despite the employee's objection? Put another way, is the employee entitled to 12 workweeks of FMLA leave plus whatever time s/he does not want designated? The answer is, "No." The DOL opinion letter reads, in part, "Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave...the employer may not delay designating leave as FMLA-qualifying even if the employee would prefer that the employer delay the designation."
Practical Application: The power of why! When an employee objects to FMLA-leave, I find when you get to the reason behind why the employee does not want it, it is often a lack of understanding of what the FMLA provides. Once an employee understands that FMLA leave is job-protected and cannot count towards excessive absenteeism, performance appraisal ratings or any other adverse employment action, s/he may be more receptive to the designation of the leave as FMLA-qualifying.
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