Can an Employee Refuse to Take FMLA?

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The Family Medical Leave Act, or FMLA, gives employees the right to up to 12 weeks of unpaid leave per 12-month period for the purpose of taking care of their own or their family members' medical needs. In most cases, employees cannot lose their jobs due to taking FMLA leave. Employees do not have to take FMLA; however, they lose the right to reinstatement if they choose not to take this leave.

Employee Risk

Employees are free to refuse to take FMLA when it is offered, but their employer can then discipline them for excessive absences if he wishes. In 2009, an employee declined FMLA leave for a medical problem. She then took time off after using up her sick days, and her employer fired her for excessive absences. When she sued, the court ruled that the employer had fulfilled his responsibilities by offering FMLA.

Short-Term Disability

Some employees who qualify for FMLA may also qualify for short-term disability, or paid time off due to a medical condition that interferes with work. Some employers' insurance polices will not pay short-term disability benefits unless the employee first exhausts FMLA, which is unpaid leave. The employee is still free to refuse FMLA, but will not qualify for short-term disability if she does so.

Reinstatement Exceptions

Employers cannot refuse to grant FMLA under most circumstances, although employees may refuse to take FMLA. If an employee does not intend to return to work after FMLA or the employer intended to lay off the employee during the FMLA period, the employer does not have to reinstate the employee after his FMLA period ends. If an employee fails to provide medical certification for FMLA, the employer can deny FMLA or refuse to reinstate the employee after FMLA ends.

Reasons for Refusal

Some employees may refuse FMLA because they anticipate a longer-term problem in the near future and prefer to save their FMLA for that situation. If the employee has sick or vacation days that the employer will let her use instead of FMLA, they may do so without consequence. Some employees also refuse FMLA because they would rather get paid leave via short-term disability.

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