What should an employer do if an employee requests that his or her leave not be counted as Family and Medical Leave Act (FMLA) leave?

Author: Melissa Burdorf, XpertHR Legal Editor

The FMLA allows an employer to decide whether or not to designate an employee's leave time as FMLA leave. Sometimes an FMLA-eligible employee will ask that his or her leave not be counted against his or her FMLA leave entitlement (e.g., he or she would rather use paid time off (PTO) and save the FMLA for an emergency). However, an employee cannot refuse to have an absence counted as FMLA leave when the leave is taken for an FMLA-qualifying reason. The decision-making power rests with the employer.

An employer should review the information submitted in connection with the leave request (e.g., medical certification). Once the employer has enough information to determine if the leave is for an FMLA-qualifying reason, the employer should notify the employee as to whether the leave will be designated as FMLA and counted towards the employee's FMLA entitlement. If the employee argues about the FMLA designation, the employer should have a documented discussion in relation to the designation dispute.

The Department of Labor has also issued an opinion letter on this topic.