Non-FMLA leave can’t be designated as 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?

No. Unless you have reason to believe she’s being untruthful, then you can’t designate non-FMLA leave as FMLA leave. To make this determination, you have to look at the employee’s certification and determine whether the leave is related. For instance, if an employee qualifies for FMLA leave related to knee surgery and follow-up care, you wouldn’t count time off for a stomach virus as FMLA leave under that certification.

Remember, however, it’s possible for employees to qualify for FMLA leave for more than one serious health condition. Let’s say an employee who is approved for FMLA leave for the knee condition is then diagnosed with cancer and needs separate intermittent leave for that condition. The employee can take leave for both (provided the person is eligible and hasn’t exhausted 12 weeks total) but will have to specify which condition the leave will be used for when the employee uses it.