Q: One of our employees will be absent for a serious health condition. However, the employee prefers to use his accrued sick days instead of FMLA leave. He has enough sick time to cover the absence. In this situation, can the employee choose not to take FMLA leave, either because he has not specifically asked for FMLA leave or because he simply does not want to use FMLA leave?

A: This is one of the most common questions I am asked in my practice, and it is due largely to the grand confusion caused by the Family and Medical Leave Act. There actually are several sub-questions contained in the nugget above, and I answer them below.

1. Does an employee specifically have to use the letters F-M-L-A when requesting leave protected under the Act? Heck no! Why? The U.S. Department of Labor says so. In its FAQs (pdf) on the FMLA, the DOL specifically states that when "an employee seeks leave for the first time for a FMLA-qualifying reason, the employee does not need to specifically assert his or her rights under FMLA, or even mention FMLA." Rather, the employee need only provide “sufficient information” to make the employer aware of the possible need for FMLA leave. Note: After the employer has provided FMLA leave for this reason, however, the DOL tells us that "the employee must specifically reference either the qualifying reason for leave or the need for FMLA leave."

Thus, it becomes critical that HR professionals and supervisors fielding the call-offs from employees be trained and in a position to identify situations where the employee has put you on notice of the need for FMLA leave.

2. If the employee qualifies for FMLA leave, can an employer make the employee use FMLA leave, even if the employee does not want to use it? Do not let your employees sweet-talk, bamboozle or bully you into not counting an absence as FMLA leave where the leave of absence is taken for an FMLA-qualifying reason. Take it from the regulations themselves:

The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee . . . When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. 29 CFR § 825.300(d)

The employer's obligations under the FMLA are clear: once it has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee as to whether the leave will be designated and counted as FMLA leave. In other words, the employer has an obligation to designate leave as FMLA-qualifying as soon as the absence becomes an FMLA-qualifying event. Employees do not have the right to choose when they take FMLA leave. As soon as the leave of absence qualifies as FMLA leave, it should be designated as such -- regardless of whether the employee wants FMLA to apply.

Failing to designate an absence as FMLA leave can have quite a negative impact on an employer's operations. For example, if you fail to designate an employee's 10-week absence as FMLA leave (when it rightfully qualifies as such), but instead allow them to utilize accrued sick leave from their sick bank, you effectively have allowed the employee leave that they otherwise are not entitled to by law. Although they will have exhausted 10 weeks of sick leave, they still have up to 12 weeks of FMLA leave available to them (instead of two weeks) because you did not designate the 10-week absence as FMLA leave.

3. Can an employer require paid leave to run at the same time as FMLA leave? Here, the employer's policy governs. If the policy requires any accrued paid leave to run concurrently with FMLA leave, then an employer can require both FMLA leave and paid leave to run at the same time. 29 CFR § 825.207(a). In the absence of such a policy, however, the employee can decide whether to use paid leave in conjunction with FMLA leave.

In this situation, you run into the same troubled situation identified in Section 2 above -- the employee can stack paid leave and FMLA leave on top of each other, resulting in more leave than the employee legally is entitled to. If your policy currently does not require paid leave to run concurrently with FMLA leave, discuss this with employment counsel to ensure your policy is consistent with your business objectives. The money you save in the long run will be well worth the advice.