Designating medical leave as protected even if the employee objects

If an employee will be taking time off work for a reason that qualifies as protected leave under the Family and Medical Leave Act (FMLA) or applicable state laws but does not wish to designate the time as protected leave, it is recommended as best practice that your company still do so.

The employee may wish to use paid time off for the leave rather than using FMLA leave or state leave. But the responsibility for designating leave falls to the employer, not the employee. This means you can designate the absence as FMLA or state leave even if the employee refuses to return medical certification forms. However, it is important to ensure that the employee meets all of the qualification criteria for FMLA or state leave for the entire duration of the time designated as protected leave. Any additional time off will need to be addressed according to your company policy.

If you designate time off as protected leave, however, you must notify the employee that their leave qualifies as FMLA, state, or both and that any time they take off for that purpose will be deducted from the amount of protected leave time they have available.

We recommend working with the employee to understand why they want to avoid taking protected leave. This can reduce the chances of conflict and give you an opportunity to educate the employee on their legal rights to protected leave. It is possible that the employee does not understand the protections they have under the FMLA or state law.

To learn more about FMLA compliance, visit our blog post How to comply with FMLA requirements.