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Nov26

FMLA Leave

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An old friend sent me this email. I’m an HR pro, but I’m not sure if it is right or not. How would you respond?: Can an employer force an employee to take FMLA leave? I was injured (not job related) and hospitalized for a while. I had 3 weeks vac. saved up and after that was going to receive disability. My employer visited me in the hospital and made me sign an FMLA form if I wanted to “keep my job”. Under the influence of some heavy pain killers, I didn’t really think twice about it and signed trusting her. Was that inappropriate of her to do that?

The employers action in putting the employee on FMLA was 100% legal and even very compassionate. Employees who are on short term disability are normally also on FMLA at the same time.

FMLA provides up to 12 weeks of unpaid, job-protected leave for the employees serious health condition. If the employee was not on FMLA, the employer could fire her for missing more than 2 or three days of work, as excessive absenteeism. The employees boss was 100% right — this move saves her job. It also continued her health insurance benefits, which would have ended if she had been terminated.

The employee can still collect any short term disability that she is entitled to, while on FMLA. It is up to the employer whether the employee is permitted to use her 3 weeks of vacation while on FMLA. But, employers have the right to schedule vacations and would be under no obligation to permit an injured worker to take 3 consecutive weeks of vacation, whether or not she was on FMLA. By law, your friend must be permitted to use any sick time that she has accumulated, while on FMLA.

On this site, we answer questions from HR pros and employers. Our sister site, at www.laborlawtalk.com, answers questions from employees. For more information, you friend can post her questions there.

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This entry was posted on Wednesday, November 26th, 2008 at 8:28 am and is filed under
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7 Responses to “FMLA Leave”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update Nov 26 Says:
    November 26th, 2008 at 5:02 pm

    […] FMLA Leave By Caitlin The employers action in putting the employee on FMLA was 100% legal and even very compassionate. Employees who are on short term disability are normally also on FMLA at the same time. FMLA provides up to 12 weeks of unpaid, … Human Resource Blog - http://www.humanresourceblog.com/ Relief in Sight? DOL Issues Final FMLA Regulations. By elin@elinfonet.com (Employment Law Information… More than 15 years after the Family and Medical Leave Act (FMLA) was signed into law, the US Department of Labor (DOL) chose to evaluate and revise regulations that it had promulgated in 1995 during President Clinton’s Administration. … Federal Employment Law Articles - http://www.elinfonet.com/ […]

  2. Denny Says:
    September 7th, 2009 at 7:15 pm

    What if the employee had 3 weeks of sick leave instead of vacation leave? Example; an employee requires a week off to recover from an illness and chooses not to declare the leave as FMLA, they have adequate sick leave accumulated to cover the required time off. Can their company / agency force them to assign this as FMLA?

  3. Caitlin Says:
    September 12th, 2009 at 3:36 pm

    Hi Denny! Yes, the employer can designate this time off as FMLA. This choice is not up to the employee, it is up to the employer.
    The employer can also require that the employee complete FMLA certification paperwork, and terminate the employee for excessive absenteeism if the employer does not comply.
    However, even if the employee does not complete FMLA paperwork, the employer can designate this time off as FMLA. Under the federal FMLA, an employee is entitled to 12 weeks of medical leave. There is no requirement under federal law that an employee be given 12 weeks of unpaid leave plus their 3 weeks of sick leave. The maximum is 12 weeks, even if a portion of that time is paid.
    As long as the employer informs the worker at the beginning of leave that it is being counted as FMLA, that is lawful. HTH, and thanks for reading the blogs!~ Caitlin

  4. Dave Says:
    November 13th, 2009 at 6:04 pm

    This may not be the case if the employee is covered by a collective bargaining agreement.

  5. Caitlin Says:
    November 14th, 2009 at 8:05 am

    Hi Dave! Thanks for bringing up an important point! Collective bargaining agreements change many situations in the workplace. ~ Caitlin

  6. Bert Says:
    April 24th, 2010 at 12:17 pm

    Wow! Very useful article. info. Thanks a ton for the insights.

  7. Caitlin Says:
    April 26th, 2010 at 9:03 am

    You are very welcome, Bert! Check back often– we are constantly posting new info!~ Caitlin

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