Carlos, qualifies for the Family and Medical Leave Act (FMLA) due to a medical condition but prefers to use accrued sick leave instead, employers may find themselves in a challenging position. The manager at Carlosās company, XYZ Corporation, wishes to designate his three-week absence as FMLA leave, while Carlos wants to save his FMLA eligibility for potential family needs in the future. This scenario raises essential questions about the employerās right to apply FMLA protections against the employeeās preference and the legal risks involved in doing so.
Employerās Right to Designate Leave as FMLA
Under FMLA guidelines from the Department of Labor (DOL), employers generally have the rightāand sometimes the obligationāto designate qualifying absences as FMLA leave if the employee meets the eligibility criteria. This designation ensures both job protection and compliance with FMLA requirements, aiming to safeguard both the employer and the employee. Even if an employee does not wish to use FMLA leave, the employer may still choose to apply FMLA to protect the employeeās job and benefits while complying with FMLA requirements.
However, in some instances, employees argue that FMLA designation should be based on their explicit request, especially if they prefer to use other accrued leave. In Carlosās case, he wanted to use his available sick days to cover his absence, reserving his FMLA eligibility for future family needs. This preference raises a nuanced question: Should the employer respect Carlosās choice, or should they follow through with FMLA designation to ensure compliance?
The Importance of Clear Communication
For an employer in XYZ Corporationās position, open communication with the employee can make a significant difference. Explaining the reasons for applying FMLA designationāsuch as protecting the employeeās job and benefits and ensuring complianceāmay help address the employeeās concerns. By providing Carlos with a thorough understanding of why FMLA designation might be beneficial for his long-term job security, the employer may be able to resolve the issue without escalation. Itās also crucial to discuss how FMLA designation does not impact his sick leave balance, preserving those days for future use.
Consistency in Policy Adherence
Employers must apply FMLA policies consistently across all employees. If XYZ Corporation has an internal policy that requires the designation of any qualifying leave as FMLA, applying it to Carlos ensures consistency and strengthens the employerās position. This approach can be helpful if the matter were to escalate legally, as it demonstrates that the employer is following established policy rather than making an arbitrary decision. Documenting all discussions with the employee and the reasons for FMLA designation further strengthens the employerās position, showing that they acted transparently and in line with company policy.
Weighing the Risk of Legal Challenge
Despite the Department of Laborās guidance, some court rulings have varied on this matter. In certain cases, courts have sided with employees, ruling that FMLA should not be applied against the employeeās will if they did not request it, especially if they prefer to use accrued paid leave. In other instances, courts have upheld employersā rights to designate FMLA leave unilaterally when an absence meets FMLA criteria, emphasizing that employers bear the responsibility of FMLA compliance. For employers, this means that designating FMLA leave against an employeeās preference does carry a legal risk. Employers must decide whether this risk is acceptable or if other options, such as honoring the employeeās preference, are viable.
Conclusion: Weighing Compliance and Employee Preference
In situations like Carlosās, employers must balance their duty to comply with FMLA regulations and the employeeās preferences for how their leave is allocated. By clearly communicating the reasoning behind FMLA designation, following consistent policies, and documenting decisions, employers can build a strong case for their actions. However, the employer should also recognize the legal risks associated with designating FMLA against the employeeās wishes, as some courts have ruled in favor of the employee in these scenarios. Each decision must weigh compliance obligations, legal risk, and the potential impact on the employer-employee relationship to determine the best course of action.
Elga Lejarza
Founder/CEO
Lejarza HR Consulting