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Employee Refusal of FMLA Leave

Okay in FMLA & STD-Part 2 it was stated an employee had a legal right to refuse FMLA leave. Suppose the employee refuses FMLA leave and chooses not to submit the necessary paperwork to apply for FMLA leave. Then at a later date they do request FMLA leave for the same reason. Does the the employee have a right to FMLA leave or have they waived their FMLA rights for that reason suring that 12 month period. If they have not waived their FMLA rights does the disignation of FMLA leave start at the point they request the leave?

This situation rarely occurs because if an employee refuses to file FMLA paperwork for an extended absence, normally the employee can be disciplined or terminated for non-attendance or excessive absenteeism. This is true whether the absence is intermittent or continuous. Examples: Juanita is pregnant, and takes off every Friday at noon for her prenatal appointments, but refuses to file FMLA papers. Juanita can be disciplined or terminated, like any employee who just does not want to work on Friday afternoons. Karl misses 6 weeks due to a heart attack,  but refuses to file FMLA papers for the absence. Karl can be terminated for excessive absenteeism, due to the extended absences.

FMLA protects the employees job when he or she requires repeated absences. Once the employee realizes the options are to take FMLA or be terminated, often the employee will decide to file FMLA papers. However, we will assume that in this case the absences have not been severe enough for the employee to be disciplined for time taken off so far.

No, FMLA is not a one-shot opportunity that is lost if the employee does not file. The employee can take FMLA later in the same year, for the same reason. Example: Amanda has migraines. She misses one day of work due to a migraine, but refuses to file FMLA paperwork. Later, she misses two more days the same month due to migraines, and decides to file the FMLA papers.

However, under the FMLA regulations that went into effect in January 2009, the employer can retroactively designate time off as FMLA, as long as it was for the employees own incapacity. In the last example, Amandas employer can retroactively designate all 3 days missed as FMLA. (Note that the employer cannot retroactively designate time off taken to care for a family member or for a medical appointment as FMLA. The assumption is that if the employee knew that the time would be FMLA, the employee might have made other arrangements. However, when an employee takes time off due to the employee being incapacitated, the employer can retroactively designate that as FMLA. In the earlier examples, Karls time off can be retroactively designated as FMLA. Juanitas time off cannot be retroactively designated as FMLA, because it was not for the employees incapacity.)

There is nothing under FMLA that permits the employee to use sick leave, paid time off, workers comp or short term disability and *save* FMLA for later. The employee is entitled to 12 weeks of unpaid leave total, not 6 weeks of short term disability plus 12 weeks of unpaid FMLA. For this reason, many employers will automatically designate time off on workers comp or short term disability as FMLA concurrently, to limit the total amount of time off. The employer can choose to do so without FMLA certification. (Be aware that in a few states, employees may be entitled to additional leave under state law, after FMLA is exhausted.)

If an employee declines FMLA, he or she can and should be disciplined or terminated for excessive absenteeism. If the employee later applies for FMLA, usually the previous time can be counted as FMLA if the employee was incapacitated.

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This entry was posted on Friday, October 8th, 2010 at 3:56 pm and is filed under
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5 Responses to “Employee Refusal of FMLA Leave”

  1. » Employee Refusal of FMLA Leave Human Resource Blog « Human Resources 123 Says:

    [...] here: » Employee Refusal of FMLA Leave Human Resource Blog Comments [...]

  2. Walter sworst Says:

    I requested fmla for time off to be with my wife after a scheduled c section. This was requested 2 weeks in advance . My manager stated the only way I could have this time off would be if I found coverage for my shifts. Is this legal? What is my recourse? As a side he has been very liberal with time off for some employees and hesitant with others.

    Thank you

    Walter sworst

  3. Caitlin Says:

    Hi Walter! No, your employer cannot require that you find someone to cover your shifts when you take FMLA. Your supervisor is incorrectly treating this as personal, unpaid time off rather than FMLA. A c-section is usually a serious health condition under FMLA, and pregnancy always is. In addition, a parent of either sex can take up to 12 weeks of unpaid leave to care for a newborn.

    We are assuming that FMLA applies, meaning the employer has 50 or more workers within 75 miles and you are otherwise qualified.

    If there is an HR department, you should go to them. If there is no HR department, then you may have to go to your supervisors boss. Use the words “FMLA leave”, so that they are clear what you are asking for. If you do not receive FMLA papers, you should contact the U.S. Department of Labor at They enforce this law. An employer cannot deny FMLA to an eligible employee.

    The favoritism is a more difficult issue. If it is based on race, color, religion, national ancestry, sex, disability, age (under 40), pregnancy or genetic information it is illegal discrimination. However, favoritism for other reasons is often legal. HTH, and thanks for reading the blogs!~ Caitlin

  4. Afi Says:

    Hi. How can I explain to employees why FMLA is required and they can be disciplined and not paid for refusing to fill out FMLA paperwork once we issue after 3 consecutive sick absences?

  5. hrlady Says:

    Hi Afi,
    Let employees know that the FMLA is a federal law that you’re required to comply with. Inform them that the law is for their benefit since it guarantees them job security and benefits during covered absences. Without this protection, employees risk being terminated for their absences. Make it very clear that employees who fail to complete the required paperwork for covered absences will be disciplined in accordance with company policy. It’s best to have clear, easily understood attendance, leave (FMLA and non-FMLA), and disciplinary policies to ensure employees are aware of both their entitlements and consequences under company policy and federal/state law. HTH!

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