Kid saying NO.jpgI received a ton of feedback last week in response to my post about whether an employee can decline FMLA leave even though the absence qualifies under the Act. One question, in particular, was thrown at me repeatedly, and it went something like this:

In our workplace, when an employee doesn’t want to take FMLA leave, they simply refuse to return medical certification to us.  In these instances, can we designate the absence as FMLA leave even though we do not have certification?

Here, you have two options:

  1. Deny FMLA leave. If the employee has not returned complete and adequate medical certification within 15 calendar days, and he has not engaged in any good faith efforts to return it, you have the right to deny FMLA leave and subject the employee to your attendance policy, which often will treat the absence as unexcused.    
  2. Designate the absence as FMLA leave. For some employers, denying FMLA leave above will not result in an unexcused absence because the employee simply can use accrued paid leave without any consequence. For other employers, they simply want to start the FMLA clock running so that the employee exhausts FMLA leave as quickly as possible and return to work. Here’s my general take: Where an absence may trigger the FMLA, it’s always advisable to obtain medical certification.  That said, it is not necessary to obtain medical certification in order to designate the absence as FMLA leave.  Look at what the regs say on this point: 

If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.  29 C.F.R. 825.300(d)(2)

Simply put, you do not need medical certification in your hand to designate leave. As the regulations state, if you have enough facts based on the employee’s notice to establish that the employee requires leave that is covered by the FMLA, you can designate it as such. No other questions asked or information needed. Notably, under 29 C.F.R. 825.305(b), you can always ask for certification later “if the employer later has reason to question the appropriateness of the leave or its duration.”

Designating the absence as FMLA leave in these situations arguably is the best route to take, particularly when they have other paid leave available to them that they can utilize to avoid an unexcused absence.  

But be careful. Only designate FMLA leave without certification when you have a level of confidence that the absence qualifies as such. Incorrectly designating FMLA leave where a serious health condition is not involved could leave to an FMLA interference claim. Where it is a close call, seek legal counsel.