Can an Employer Force FMLA Leave?

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Employers have the right to require an employee to take FMLA leave. Many times it is in the best interest of the employer and the employee to do so. The Family and Medical Leave Act was established by the Clinton administration in 1993. It protects the jobs of employees who are experiencing a qualifying condition or situation as defined by the act. However, the leave is not without restrictions that can be enforced by employers. Employees must first qualify for FMLA and also must take it if the employer deems it necessary.

About FMLA

  • The Family and Medical Leave Act provides 12 weeks of unpaid leave to employees with qualifying conditions who have worked a minimum of 1,250 hours in the past year. Employees who are suffering from a serious illness or caring for a close family member with a serious health condition may qualify for FMLA. Giving birth to a child or adoption of a child is also a qualifying condition. More recently, military service members have been granted up to 26 weeks of leave for qualifying conditions that can include being called to active duty, preparation for active duty and injuries resulting form active duty. The military provisions also extend to family members caring for military members with these conditions.

Employer Rights

  • Employers have the right to force an employee to begin using FMLA leave if it is believed the employee has a qualifying condition. In the case Knox v. the City of Monroe, the court held in favor of an employer who requested that an employee take FMLA leave. When the employee refused to take the leave the employer subsequently fired her for excessive absences, and the court supported the employer's actions. Employers also are not required to inform employees that their jobs may be in jeopardy if they fail to take FMLA leave. An employer is required to inform an employee only of the necessity to take leave for a given condition.

Employee Rights

  • Employees have the right to be informed that a medical condition or situation qualifies them for leave if they meet the employment requirements of FMLA. Employers can require them to use paid leave concurrently with FMLA leave. Employees must provide physician certification of a qualifying condition but must also be informed by the employer of the deadline required for the paperwork. This deadline is generally 15 days. Employers have five days to respond to an employee's request for FMLA. If an employer fails to respond, an employee may be afforded extra leave because the official FMLA clock has not yet begun.

FMLA Considerations

  • Although the courts have held in favor of employers in some cases of forced FMLA leave, the FMLA is a slippery slope legally. Employers who have concerns about employees and FMLA leaves should keep careful, detailed documentation of all communication regarding the leave. It is also in the best interest of the employer to seek the advice of an attorney who specializes in labor law. FMLA compliance guidelines are available at the Department of Labor website (see Resources).

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