Q. Why should an employee apply for FMLA protection if the employee has enough leave time to cover the absence? How does FMLA benefit an employee who has ample paid leave time?
A. It is the employer's responsibility to designate leave as FMLA qualifying; the employee need not apply for FMLA protection. The County must provisionally designate leave as FMLA qualifying based on information provided by the employee or the employee's spokesperson. Upon receipt of the medical certification verifying the serious health condition or other FMLA qualifying reason, the FMLA designation will be final.
An employee does not have the option of electing whether or not leave taken for an FMLA qualifying reason is to be counted towards FMLA entitlement once the County becomes aware of the reason for the leave and properly notifies the employee of the FMLA designation. It is necessary that all employees be treated equally in accordance with the County's policy and the Family and Medical Leave Act, whether the employee has accrued allowable paid leave time or not.
FMLA protection may benefit an employee who has ample leave time since leave usage requested and documented in accordance with FMLA guidelines may not be denied. For certain job benefit purposes, including merit increases, attendance recognition, performance evaluations, promotional opportunities, and other such issues, an employee must be treated as if the employee did not use FMLA leave. An employee may not subsequently assert FMLA protections for an absence unless the County is notified within two business days of return to work of the reason for the leave.
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Q. Why must an employee use all earned allowable leave before going on an unpaid leave of absence under FMLA? Are there any situations where this is not true?
A. The County's policy states that the employee must use allowable accumulated paid leave before taking unpaid FMLA protected leave. If an employee has ample accrued leave to cover the absence, all of the FMLA protected leave may be paid. FMLA leave begins upon the initial absence for the protected reason, not upon expiration of an employee's paid leave benefits. This is to prevent leave stacking and extensive absences.
If an employee's FMLA absence is due to an injury or illness compensable under Workers' Compensation, the employee is not required to first use accumulated paid leave. Also, an employee is not required to use accrued compensatory leave for an FMLA absence. Compensatory leave usage is not considered against an employee's twelve (12) weeks of FMLA
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Q. Why is it so critical to inform the employee, in writing, of the provisions of FMLA?
A. Failure to properly inform the employee may prevent the County from retroactively designating leave as FMLA and could allow an additional twelve (12) weeks of leave. The initial notice may be given verbally; but it must be confirmed in writing no later than the following payday.
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Q. Can the County designate leave as FMLA based on information provided by a third party?
A. Only if the third party is the employee's spokesperson. The designation must be based on information provided by the employee or the employee's spokesperson.
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Q. When can leave under FMLA be taken intermittently?
A. Leave under FMLA can be taken intermittently when authorized by the employee's health care provider or the health care provider of the spouse, parent, or child for whom the employee will be providing care. Updates from health care providers should be obtained if leave usage is greater than that indicated on the application for FMLA usage and the health care provider's medical certification.
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Q. What if the employee is out of leave time and needs to use leave intermittently under FMLA for the reasons allowed according to the answer in #6 above?
A. An employee who is out of paid leave time but needs to use intermittent FMLA leave may be marked with a no pay FMLA marking, - BY or ZY -, depending on the circumstances, for the intermittent absences.
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Q. Can an employee use anticipated leave earnings for an FMLA absence?
A. Yes. The agency can approve usage of anticipated leave if the employee is expected to return to work and earn the leave. However, if the employee does not return, the County will bill the employee for leave overusage.
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Revided December 28, 2004
Courthouse 