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The Family and Medical Leave Act (FMLA)clearly states that when an employer knows that a worker taking leave qualifies for FMLA, it must designate the worker’s absence as FMLA leave.

Despite this requirement, some employers let employees choose whether to designate their leave as FMLA leave. Two recent court cases have highlighted why this approach could cause problems for your company.

Both cases—Escriba v. Foster Poultry Farms and Amstutz v. Liberty Center Board of Education—involved workers who were terminated from their jobs. These employees later brought FMLA lawsuits against their former employers, claiming FMLA
interference and retaliation, respectively.

In these cases, both employees requested not to use FMLA leave for medical-related absences and instead elected to take another type of paid time off—and both employers allowed them to do so.

In both cases, the courts ruled in favor of the employers because the workers had previously used FMLA leave on several occasions and understood their companies’ FMLA processes. So when they declined to use FMLA leave, they knew what they were doing. Not having the leave designated as FMLA leave was their own choice, not a result of their employers’ interference or retaliation.

While these employers were successful in defending against the FMLA claims, HR professionals should be wary of similar situations. Letting employees decide whether or not to apply FMLA could be dangerous for  your company.

This approach could be seen by an employee, and a court, as the employer attempting to prevent employees from exercising their FMLA rights. Trying to make leave-designation decisions based on which employees understand FMLA procedures
could expose your company to administrative and legal issues.

The easiest way to avoid an FMLA lawsuit is to always apply FMLA leave when an employee qualifies for it. Even if a worker chooses to use another type of leave, FMLA leave should run concurrently.

Applying FMLA right away avoids giving employees the option to decline FMLA leave, and can help protect you against future lawsuits while safeguarding your bottom line.

For more information contact Sue Justice From Emery Benefit Solutions at sue@emerybenefitsolutions.com


Please note this is not considered legal advice.
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