Human Resource Blog

Discipline before FMLA approval

Is it right to discipline an employee for an absence that was taken as FMLA but has not yet been either approved or denied?

If the employee has submitted all the FMLA paperwork but the company has not yet made a decision to approve or deny the unpaid FMLA leave, it is probably not a good idea to discipline the employee for the absence. That would be punishing the employee for the companys own lack of promptness.

Under FMLA, the federal Family and Medical Leave Act, employees are entitled to take up to 12 weeks of unpaid, job-protected leave for a variety of reasons including illness and baby bonding. Employees on FMLA cannot be disciplined for taking the time off, under federal law. In fact, an employer cannot take any negative action against the employee for taking time off under FMLA.

It is possible that if the employee has already been disciplined, once FMLA is approved an apology could be issued to the employee and all mention of the disciplinary action could be removed from the personnel file. But it would be far better for the employer to wait until FMLA is denied (if it is) and take disciplinary action then.

If the employee has not completed the paperwork for FMLA, then the employer is free to handle this as he or she would any other unapproved absence.