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Friday, August 19, 2016

Dear HR: Stop Telling Employees They Can't Apply For FMLA Until They Use Their Vacation

For about the dozenth time this year, I heard another sob story about an employee who absolutely qualified for FMLA leave, yet was told by HR that they couldn't apply until they used up their vacation or PTO time. This is wrong on so many levels, and it screws both the employee and the employer. So stop it.

Seriously. Stop it.

It screws up the employee because their boss assumes they're taking unprotected leave and so those sick and vacation days used for hospital stays, doctor visits and caregiving responsibilities are held against the employee in reviews, consideration for promotions, and discipline.

It screws up the employer because once the employer knows leave should be covered by FMLA, the employer's legal duties under FMLA kick in:
When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his or her rights and responsibilities under the FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

 FMLA is mostly about unpaid leave, but employees do NOT have to use all their paid leave before applying:.

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave.
The consequence to employers can be severe. First of all, the employee may be entitled to more leave than you're legally required to give if you mess this up. Second, if the employee's leave should have been designated as FMLA and wasn't, and you hold that time off against them, you're talking FMLA lawsuits plus disability discrimination lawsuits.

Employees, if you qualify for FMLA (you've been there at least a year AND worked 1250 hours or more in the past 12 months AND there are 50 or more employees of the employer within 75 miles of your work location) then don't believe HR when they say you can't apply. As soon as you know you have a serious medical condition and will need doctor's appointments or medical treatment, apply for intermittent leave. Employers frequently forget about intermittent leave, and it's a good thing. Here's more from the Department of Labor on intermittent leave:

(Q) Does an employee have to take leave all at once or can it be taken periodically or to reduce the employee’s schedule?
When it is medically necessary, employees may take FMLA leave intermittently – taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule. When leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to unduly disrupt the employer’s operation.
Leave to care for or bond with a newborn child or for a newly placed adopted or foster child may only be taken intermittently with the employer’s approval and must conclude within 12 months after the birth or placement. 
(Q) Can an employer change an employee’s job when the employee takes intermittent or reduced schedule leave?
Employees needing intermittent/reduced schedule leave for foreseeable medical treatments must work with their employers to schedule the leave so as not disrupt the employer’s operations, subject to the approval of the employee’s health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodate recurring periods of leave better than the employee’s regular job.
So, HR folks, can we agree that you'll stop telling employees they can't apply for FMLA until they use their vacation? And employees, feel free to show them this post if they say that.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.