Employers generally may designate leave as FMLA, even if the employee does not wish to take FMLA leave, Bunck said. I have one caveat for employers: make sure you have enough independent information to determine the employee has a serious health condition prior to designating the time as FMLA. In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave. Note: In addition to this entitlement, the Securities and Exchange Commission and the Federal Deposit Insurance Corporation provide six weeks per 12 months of paid leave, without charge to another form of leave, for these same purposes. I strongly disagree with those commentators. It does not, in my opinion, stand for the proposition that an employer cannot designate qualifying FMLA leave as FMLA. Employer FMLA compliance isn't inclusive of all family members. Yes. The supervisor has discretion to approve the request without FMLA. But what about the flip-side of that coin? If a federal employee has sufficient leave balances there is no requirement the affected employee first be approved under the FMLA prior to a supervisor approving the use of accrued sick leave (SL) or accrued annual leave (AL) in lieu of sick leave, regardless of the duration. Although an employee may request annual leave for sick leave purposes, annual leave is subject to supervisory approval and may be denied. For the supplemental article, please follow this link. They are advanced labor and employee relations practitioners. Employees must provide physician certification of a qualifying condition but must also be informed by the employer of the deadline required for the paperwork. Specifically. 29 CFR § 825.207(a). Can an Employer Force an Employee to Use FMLA? Plus, even if your employer is covered by the FMLA, it doesn't mean … However, the supervisor generally maintains ultimate discretion in whether to approve the use of accrued leave in connection with serious health conditions requiring “unusual” use of sick leave or even annual leave in lieu of sick leave, without regard to invocation of the Family Medical Leave Act, regardless of duration or whether the leave is intermittently used over an extended period of time (like for dialysis treatments). Employees are eligible for FMLA … InformedFED provides expert administrative consulting and related transactional services to federal employees in all labor and employee relations matters. When Rebecca’s 12 weeks were up and she wasn’t ready to return, she was terminated. The employer’s obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave. Walker v. The regulations clarify that the hours that an employee would have been required to work but for the taking of FMLA leave can be counted against the employee’s FMLA entitlement. A. Moreover, if the employer doubts the initial certification, it can require a second (and, sometimes, even a third) medical opinion. In addition, there are other provisions in the FMLA regulations providing discretion to the employer, such as paid leave substitute rules (“employer may require”) and intermittent use of FMLA for baby bonding, where it is the employer’s choice whether to allow it. 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