The Family And Medical Leave Act: A Dozen Years of Confusion

Q: Can time off required because of a workers’ compensation event also be counted as an FMLA leave entitlement?

Yes.  FMLA leave and workers’ compensation (WC) leave can run concomitantly.  The WC event must have resulted in a serious medical condition. Also the employer must properly notify the employee, in writing, that time missed due to the WC event will be counted as FMLA leave.

Q: Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of a child?

Yes. Remember the intent of the law.  That intent is to make the employee eligible for 12 weeks of unpaid leave in a 12 month period.  Therefore, an eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If an eligible employee has to use some of that leave for another reason, including a difficult pregnancy, the time missed can be counted as part of the 12-week FMLA leave entitlement.

Q: Can the employer count time on maternity leave or pregnancy disability leave as FMLA leave?

Absolutely. Pregnancy is a covered event under the FMLA.  Any period of disability during the pregnancy, including morning sickness or maternity leave for the birth of a child are qualifying events under the FMLA.

Q: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

The legal environment in this type of situation is not clear.  The intent of the law is to provide the employee with12 weeks of leave for qualifying events in a 12 month period. The Department of Labor, the agency that enforces the law has held that in most situations, the employer cannot count leave as FMLA leave retroactively. Keep in mind, the employee must be notified in writing that an absence is being designated as FMLA leave. However, if the employer was not aware of the reason for the leave, then leave may be designated as FMLA leave retroactively but only while the employee is on leave or within two business days of the employee’s return to work.  Is that clear as mud?

Editor’s Note:  Employers are encouraged to be very cautious about retroactively designating time missed from work as FMLA leave.  The burden is on the employer to make this determination as quickly as possible so the employee knows where s/he stands in the  processs.Under some unusual circumstances it may be necessary to retroactively designate leave.  However, if the employer is “managing” FMLA this should be a rare occurrence.