Human Resource Blog

FMLA Requirement

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I work for a company in Nevada and before I arrived, employees were filling out FMLA papers “just in case” they needed it. One employee had filled out FMLA a year ago and had called in yesterday wanting to use FMLA. I requested the employee to return to her doctor to have a new form filled out and will request to do so every 30 days. My question is, this employee has been using her sick leave first and then calling in FMLA as to not lose her job (they get written up if taking sick leave when leave isn’t available-we have 15 days leave per year). Can we, the employer, require the employee to use FMLA when they call in sick? I understand they are able to use sick to get paid leave, but can we choose when FMLA is used or can the employee? There are employees who will have surgery and will be out 8 weeks. THEY decide they want to use vacation and sick and then FMLA. What are the employer rights?
Thank you

First, employees who fill out FMLA forms in case they might get sick in the future is just…bizarre. Especially since the employer already has a generous 15 sick days per year. And, how can a health care provider certify that an employee has a “serious health condition” before they are actually ill? It boggles the mind.

As you probably know, you can require medical certification for each FMLA absence. The US Department of Labor has a recommended form at http://www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf. The regs also allow for periodic recertification, as you are requiring. Kudos!

Yes, as an employer you can require that FMLA leave run concurrently with paid leave if the employee has a “serious health condition.” Surgery would certainly qualify. It was never the intention of FMLA that employees have 12 weeks of unpaid leave, plus 3 weeks of paid sick leave. The only requirement is that employees must be advised in writing at the beginning of their paid leave (preferably before the leave starts) that it is being counted as FMLA. This is at the employer’s discretion.

In fact, under new FMLA regulations introduced by the US DOL in 2008, employers MUST allow workers to use paid vacation time, as well as paid sick time, while on FMLA. However, the total still doesn’t have to extend beyond 12 weeks.

Best of luck with what looks to be a very challenging situation!