October 25 Tip of the Week

FMLA: Can Employers and Employees Agree to Opt Out or Delay?

A common misconception about the FMLA is that employers and employees can (and should) use FMLA on an optional basis, allowing the employee to choose whether he wants his medical leave designated as FMLA, allowing the employer to grant leave “in good faith,” planning to reinstate the employee anyway, without the guarantee of FMLA, or allowing the parties to agree that the leave will not be FMLA leave.  In practice, employers should always designate FMLA-qualifying leave as FMLA immediately, as soon as the employee’s leave qualifies under one of the conditions under which FMLA can be taken.  Failure to designate all FMLA-qualifying leave immediately on its inception is out of compliance with the FMLA, and dramatically increases the risks of an FMLA interference or retaliation claim, even if the employer or the employee claims that FMLA is not necessary or wanted at the time.

Employees do not have to use the words, “I need FMLA” for the employer to be obligated to begin the FMLA practice.  If an employee is absent due to illness for three or more consecutive workdays, reports absences for chronic illness or medical appointments, requests time off to provide care for a parent, child or spouse, or is pregnant, the employer should immediately determine whether the employee meets the length of service and hours of service requirements to be eligible for FMLA, and inquire whether the employee may need time off due to their own serious illness, to care for a parent, spouse, or child with a serious illness, or for prenatal appointments, pregnancy complications, and baby bonding.  The employer should then give the employee the Notice of Eligibility and Rights and Responsibilities Notice, and include a blank Certification of Health Care Provider so that the employee may provide information for you to determine whether the reason that they require leave qualifies under the FMLA.  If the employee provides information indicating that the leave qualifies, you should provide the employee with the Designation Notice, and begin tracking all hours, days, or weeks of absence attributable to the qualifying reason.

Providing the Notice of Eligibility and Rights and Responsibilities Notice and Designation Notice as soon as the need for FMLA is determined and substantiated is required by law.  If an eligible employee is absent for FMLA-qualifying reason and does not receive these notices at the initiation of FMLA qualification, you have committed a FMLA violation.

Retroactive designation of FMLA is possible, but carries its own risks.  Employers should always remember that initiating the FMLA process at the beginning of FMLA-qualifying leave is an obligation, not a choice, and failing to do so can lead to FMLA violations, as well as costly interference and retaliation claims.