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Can I Choose Sick Leave Over FMLA Leave?


The guarantee of FMLA leave can be a blessing for qualifying employees who have chronic medical issues or even those who suffer unexpected illnesses. Yet, there are some employees who would prefer not to use their FMLA leave and instead use accumulated sick leave. The question is: can an employee ask that FMLA leave not be applied to a covered absence? According to the Department of Labor, the answer is “no.”

Leave Based on an FMLA-Qualifying Reason

It is basically understood that once an employee’s absence qualifies as FMLA leave, the employer is required to designate that absence as FMLA leave. Specifically, 29 C.F.R. 825.301(a) states: “once the employer has acquired knowledge that the leave is being taken for an FMLA-qualifying reason, the employer must [designate the absence as FMLA leave].” There is nothing in the regulations that suggests the employee can make a choice or influence the FMLA designation process in some way once it is determined that the absence qualifies.

DOL Opinion Letter Answers the Question Clearly

On March 14, 2019, the Department of Labor issued an opinion letter that addressed “whether an employer may delay designating paid leave as Family and Medical Leave Act (FMLA) leave.” The answer to this question was clearly no. Here is what the opinion letter states:

An employer is prohibited from delaying the designation of FMLA-qualifying leave as FMLA leave. Once an eligible employee communicates the need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.

The employer may not delay designating leave as FMLA-qualifying, even if the employee would prefer that the employer delay the designation. . . . [I]f an employee substitutes paid leave for unpaid FMLA leave, the employee’s paid leave counts toward his or her 12-week (or 26-week) FMLA entitlement and does not expand that entitlement.

(emphasis added). Basically, if the leave qualifies under the FMLA, it must be designated as such regardless of the wishes of the employee taking the leave.

What Does this Mean?

The basic premise is that employees are not allowed to choose whether or not their absence is covered by the FMLA once it has been determined to be an FMLA-qualifying reason. This opinion letter makes this mandate clear where it may have been confusing or unsettled before. Employees who are covered under a collective bargaining agreement or public sector personnel policy may be already allowed to use paid leave before using their FMLA leave. However, this opinion can require employers and unions to go back to the negotiating table. This opinion does not change the fact that employers can be more generous with their paid and unpaid leave policies than the FMLA requires. The regulations state as follows: “[n]othing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.” 29 CFR 825.701(a).

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King . You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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