One of our employees is on intermittent Family and Medical Leave Act (FMLA) leave.  She’s gotten sick and claims it is unrelated to her reasons for being on FMLA leave.  Can we include these days in her FMLA time and have them go unpaid?

Your inquiry raises a question regarding designation of leave as FMLA leave.  In this instance, the employee desires not to have her absences treated as FMLA-qualifying leave whereas you, the employer, wish to treat them as FMLA leave.  Whether the absences can or should be designated as FMLA-qualifying will depend on the specific circumstances, determined, in part, upon what the employee has communicated regarding what she claims to be an unrelated sickness.

Under the federal FMLA, the employer is responsible in all circumstances for designating leave as FMLA-qualifying and for providing notice of the designation to the employee.  The Department of Labor (DOL) has taken the position that once an eligible employee communicates the need to take leave for a FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.  According to the DOL’s interpretation of FMLA regulations, an employee cannot decline FMLA leave to save that time for future use. If a qualified leave presents itself, it must be treated as such and the employee does not have the right to decline that leave.  While DOL opinion letters are not the law, they do provide helpful guidance to employers navigating the ins- and-outs of FMLA law.

The specific facts of your situation will dictate if a qualified leave has presented itself.  An employer cannot and should not unilaterally count sick leave absences against FMLA leave certified for a different serious health condition, as your inquiry suggests.  However, if you, as the employer, have enough information to designate the absence as FMLA-qualifying, then it should be designated as such, regardless of whether the employee wishes to have it designated and counted against her 12-month FMLA entitlement.  As a general rule, where an absence may trigger the FMLA, it is always advisable to obtain medical certification.  In some limited circumstances when a leave is clearly FMLA-qualifying, the leave might be designated as such without an underlying medical certification.  However, doing so presents a risk.  Incorrectly designating FMLA leave where a serious health condition is not involved could result in a FMLA interference claim. Where it is a close call, we recommend seeking legal counsel to guide next steps, including consideration of requirements under applicable state leave law, which may differ.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.