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During a recent webinar we presented, attendees asked what to do if employees say they don’t want to take FMLA leave for certain absences. May employees decline their entitled FMLA leave? This appears to be a common occurrence, as we are frequently asked this question.

The short answer is, generally, no. If the employee meets the eligibility criteria and the reason qualifies for FMLA protections, you (as the employer) must provide those protections. Employees generally may not say “no thanks” to their FMLA protections.

The related FMLA regulations state:

  • “Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA.” [29 CFR 825.220(d)], meaning employees can’t decline their FMLA rights.
  • “The employer is responsible in all circumstances for designating leave as FMLA-qualifying…” [29 CFR 825.300(d)], meaning that the employee is not responsible for determining whether the FMLA will be applied to a particular absence; this is up to the employer.
  • “Once the employer has acquired knowledge that the leave is being taken for a FMLA-qualifying reason, the employer must notify the employee…” [29 CFR 825.301(a)], again meaning that the employer is obligated to make the designation decision and provide a designation notice.

What happens if employers don’t designate FMLA leave?

Failure to provide the FMLA protections can risk an interference claim, even if the employee would rather not “use” FMLA leave for a particular absence.

Employees could, however, take a passive-aggressive stance and decide to not give you a requested certification supporting the need for leave. In that situation, you might not have enough information to determine if the leave qualifies for FMLA protections. If not, you might have to deny those protections.

You could designate it as FMLA leave without enough information, but the employee could then argue that the reason didn’t qualify for FMLA, and you might not have any evidence supporting your argument. Of course, you would need to inform the employee of whichever decision you come to with a designation notice.

For employees who don’t want to use FMLA leave and don’t give you a requested certification, you could remind them about the potent protections the FMLA provides — like job protection and group health care coverage continuation. Time off under a company policy, or even under workers’ compensation laws might not, for example, specifically protect an employee’s job, or entitle them to reinstatement to the same position.

Workers’ compensation and FMLA leave

Remember, workers’ compensation and the FMLA provide for different benefits and can run concurrently.

If you have enough information from another source, such as from an occupational health care provider in situations involving workers’ compensation or perhaps a disability claim, you may certainly use it to determine if the employee’s condition meets the FMLA’s definition of a serious health condition and that the employee is entitled to FMLA leave.

Once you have enough information, regardless of the legitimate source, you are expected to use it to determine if an absence will be designated as FMLA leave. If the employee argues, you can simply say that you are complying with your requirements under the law.

Key to remember: Don’t disregard your FMLA obligations just because an employee would rather not use it for a particular absence. You are responsible for determining if the FMLA applies to an absence, not employees.