Labor & Employment Alert: I Want to Save My FMLA for a Rainier Day

If you have been working with the Family and Medical Leave Act (FMLA) for a while, you may have come across the employee who presents to the HR Department with documentation that indicates he/she would qualify for use of FMLA; but, in this case, the employee contends, “I don’t want to use FMLA – I want to save that, just in case I need it later. Instead, I’ll just charge this absence to vacation.” As an employer, do you care? Should you care? Should you allow it?

Last week, the “Wage & Hour Division” of the US Department of Labor, the part of the government that would actually enforce FMLA rules against an employer, issued a formal statement on just this point. And, they indicated, in no uncertain terms, NO, an employer may not allow an employee to “save” his/her FMLA for a rainier day – neither he/she, nor the employer, has the discretion not to trigger FMLA once it is applicable.

This is more than just the answer to a game of FMLA trivia. The reasoning of the Government hinges on the premise of the law that the burden is on the employer to be aware of this law, and its application to the circumstances of its employees. If the employee has provided his/her employer enough information to be aware that FMLA may be triggered by the employee’s illness, then it is up to the employer to raise the issue with the employee and designate that FMLA is in operation, whether the employee asks for FMLA or not – a burden/obligation which some employers do not fully appreciate. The Labor Department is now formally extending this duty one step further, saying that, in doing so, the FMLA timeclock must be triggered by the employer. According to the Government, when the law says that an employee may not waive his/her rights under FMLA, it means that the employer may not allow the employee to waive his/her rights. 

As it turns out, this ruling was necessitated because a court of appeals in the federal 9^th Circuit had previously held otherwise – that an employee did have a right to “save” his/her FMLA. But, from an enforcement standpoint, employers in Ohio can and should assume that the Government’s position is applicable: FMLA “saving” is not allowed.