Human Resource Blog

FMLA Designation

I recently began working for a public sector employer in Tennessee, and the employer had previously let employees dictate when their time away from work was FMLA or just sick/vacation. It is my understanding that an employer can designate leave as FMLA, provided the leave is related to the conditions set forth under FMLA. Since the precedent to date has been allowing the employee to determine whether or not they want FMLA protection, can we begin designating time taken as FMLA where applicable? Thank you.

Yes, you should definitely change this policy. Your current policy would permit an employee who has 3 weeks of vacation and 3 weeks of sick leave to take 12 weeks of FMLA plus 6 weeks of paid leave per year. That is a total of 18 weeks, or 4.5 months every year — way too much leave. One of the intentions of FMLA was to be fair to employers by limiting the time an employee can take off to 12 weeks per year.

You absolutely can begin designating time as FMLA when it is for a reason that qualifies, and you should. Before you do so, however, you should issue a new written policy that specifies that the company will designate as FMLA any paid or unpaid time off for a qualifying reason.

Be aware that under the federal FMLA regulations, an employee is entitled to use paid sick leave while on FMLA, and may be entitled to use paid vacation following company policy. However, that time is still counted toward the total 12 weeks of FMLA.