You are not required to but may, as the employer is permitted to designate qualifying leave as time off under the Family and Medical Leave Act (FMLA) without the employee’s consent. There are certain related things to consider when developing and applying your leave policy.

When an eligible employee working for an employer covered by the FMLA takes a leave for a purpose covered by the law, his or her job and benefits are protected by that statute, regardless of whether the employer designates it and counts it toward the FMLA entitlement, unless he or she already has exhausted their FMLA leave entitlement. Therefore, it is wise to designate all FMLA-qualifying leaves as FMLA.

If an employer wishes to, or is required to, provide more leave than FMLA requires, (e.g., leave under the Americans with Disabilities Act (ADA) and/or state leave laws, or, if the employer is being generous, additional employer-provided leave), the policy may specify that such additional, non-FMLA qualifying leave will be used once the FMLA leave has been exhausted.

Alternatively, an employer may opt to draft a policy permitting an employee to miss “X” number of days before the FMLA will go into effect. That also would be fine, as long as the ADA, state leave laws and other legal obligations still are satisfied even after FMLA leave has been exhausted; just make sure the policy is applied evenly throughout the company, and that no exceptions to this are made to ensure equal treatment and avoid discrimination claims. (Of course, you protect employees’ jobs and benefits for those “X” number of days.)

 
Please Note: This material is provided as general information and is not a substitute for legal or other professional advice. Contact the Knowledge Center for more information.
 

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