Don’t automatically count absences against FMLA leave

Q: One of our employees is on intermittent Family and Medical Leave Act (FMLA) leave. She’s gotten sick and claims it’s unrelated to her reasons for being on FMLA leave. Can we include these days in her FMLA time and have them go unpaid?

Your inquiry raises a question regarding designation of leave as FMLA leave. In this instance, the employee desires not to have her absences treated as FMLA-qualifying leave whereas you, the employer, wish to treat them as FMLA leave. Whether the absences can or should be designated as FMLA-qualifying will depend on the specific circumstances, determined, in part, upon what the employee has communicated about what she claims to be an unrelated sickness.

Under the FMLA, you are responsible in all circumstances for designating leave as FMLA-qualifying and for providing notice of the designation to the employee. The Department of Labor (DOL) has taken the position that once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. According to the DOL’s interpretation of FMLA regulations, an employee can’t decline FMLA leave to save that time for future use. If a qualified leave presents itself, it must be treated as such, and the employee doesn’t have the right to decline it. While DOL opinion letters are not the law, they do provide helpful guidance to employers navigating the ins-and-outs of FMLA law.