Your employee Jane calls in sick after being admitted to the hospital, but you don’t want to pry into her personal condition, so you count it only as sick leave. Another employee Bill takes PTO, telling his supervisor that he needs to travel to see his mom who is very sick. Neither employee mentions or requests leave under the Family and Medical Leave Act (FMLA) so you don’t even consider that their time off may qualify as FMLA leave. Is that a problem? Let’s consider it!

No Magic Words Needed for FMLA Leave

When it comes to designating time off as FMLA leave, employers are not permitted to bury their head in the sand and claim ignorance. Instead, when an employee indicates a need to take time off of work for a reason that may qualify for leave under the FMLA, typically neither the employee nor the employer may decline FMLA protection for that leave. See 29 C.F.R. § 825.220(d)[i]. Importantly, employees need not specifically mention the FMLA or that they are invoking their FMLA rights. Employers have an affirmative duty to follow up with the employee to determine whether the time off is for an FMLA-qualifying reason.

Why Is FMLA Designation Important?

First, properly designating time off as FMLA leave, when applicable, is required by law. Second, employers should designate every qualifying absence as FMLA (with all required notifications) so that the employer can limit the employee’s job protected leave to 12 weeks (26 weeks for servicemember care) within each 12-month period. And third, proper FMLA designation can lessen the chance of lawsuits.

Remember, FMLA leave is job-protected time off. Absences that qualify as FMLA leave should not be counted against an employee under absence policies. Employers must return an employee to the same or equivalent job upon the employee’s return from FMLA leave. Moreover, employers may not retaliate against an employee because the employee has requested or taken time off for an FMLA-qualifying leave reason. Employers frequently get tripped up because they fail to designate time off as FMLA-covered leave. When they later discipline, demote, or fire an employee on the basis of having too many absences or failing to meet project deadlines without accounting for FMLA-protected time off, employers find themselves defending FMLA interference and retaliation claims.

Practical Tips for Ensuring Proper FMLA Designation

Here are numerous practical tips to help your organization properly designate time off as FMLA leave:

  • If an employee mentions that he/she is having surgery, is/was in the hospital, is pregnant, or has a chronic medical condition, they likely have a serious health condition as defined by the FMLA – inquire further or send out FMLA paperwork to confirm.
  • If an employee has absences that relate to providing care to a family member, ask questions. Caring for a sick child with a cold likely won’t trigger FMLA leave, but caring for a child with asthma or allergies likely would. It is important to inquire further or send out FMLA paperwork related to care of a family member to confirm.
  • Remember that certain FMLA-qualifying leaves may be taken intermittently so just because an employee misses a few days each month rather than all at once doesn’t mean that the time doesn’t qualify for FMLA.
  • Train your managers, supervisors, and all HR personnel annually to recognize these scenarios that may qualify as FMLA leave.

In short, be proactive and ask questions to determine whether absences may be covered by the FMLA. Sick time, PTO, and other paid and unpaid leaves (whether provided by company policy or required under state law) may run concurrently with FMLA when the reason for leave is FMLA qualifying. Just don’t forget your employer obligations under the FMLA and when in doubt, reach out to your employment counsel for advice.

[i]Employers within the Ninth Circuit should review Escriba v. Foster Poultry Farms, 743 F.3d 1236 (9th Cir. 2013), and consult with counsel.

This article is meant for educational purposes only and is not intended to provide legal advice.