Can Worker Exhaust FMLA if he doesn’t say ‘FMLA’?

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fmlaIf an employee is absent for health reasons and wants to use only his paid sick time (and he has enough to cover the absence), can you start the FMLA clock?

The answer: Yes, but only if only if his absence would qualify him for FMLA leave.

You can even run the FMLA clock if the employee has specifically requested that you don’t, citing the fact that he has enough paid sick time built up to cover the absence.

RUN BOTH CLOCKS

Three things to keep in mind in situations like this:

BOTH CLOCKS CAN BE RUN CONCURRENTLY. Employers are allowed by federal law to require employees to use paid sick time and FMLA time concurrently. Employees don’t have to use one or the other. But your leave policy must make it clear this is how your company handles such leave.

WORKERS DO NOT HAVE TO SAY “FMLA.” As labor and employment law attorney Jeff Nowak points out on his FMLA Insights blog, the DOL says an employee seeking leave does not need to mention FMLA leave for FMLA leave to be exhausted. He or she need only provide “sufficient information” to make the employer aware of the possible need for FMLA leave. That means the employee must, at the very least, specifically reference a qualifying reason for FMLA leave for such leave to be used.

EMPLOYEES DON’T HAVE THE RIGHT TO PICK WHEN THEY USE FMLA.

As soon as an employer becomes aware an absence qualifies for FMLA leave, they should designate it as such, Nowak says. Failing to do this can give employees access to more leave than they would ordinarily be entitled. For example, they could exhaust their sick leave and still have 12 weeks of FMLA leave if both aren’t used concurrently.

Warning: If you’re going to designate an absence as FMLA leave, you’ve got five business days (assuming there are no extenuating circumstances) to inform the employee he or she will be using FMLA leave.