Can FMLA be used to cover employee’s partial return?

Q    One of our managers has been out on short-term disability, but he didn’t apply for Family and Medical Leave Act (FMLA) leave. If he returns three days per week, can we apply FMLA leave to cover the other two days?

Whether you can apply FMLA leave to cover the manager’s absences depends on whether an employer can require an employee to take FMLA leave for qualifying reasons or the employee has the option to request or decline FMLA leave. And, because the courts are split on that question, the answer to your question may depend on the employee’s location. Also, state law may impact how you administer the employee’s time off.

FMLA regulations clearly put the burden on the employer to decide whether an employee is entitled to FMLA leave for a qualifying reason, even when the employee doesn’t specifically request it. And, it’s usually to the employer’s advantage to begin FMLA leave as soon as possible so the employee’s job-protected status under that law won’t continue indefinitely.