Sometimes things that should be simple just have to be complicated! This is true for Family and Medical Leave Act matters when a seemingly straightforward situation throws a curveball because an employee tells you she “does not want FMLA leave… I want to save my time for another occasion….” Believe it or not, this can and does happen. Fortunately, the federal Department of Labor gave us an answer for these situations many years ago when it issued an opinion letter right on point.

In Opinion Letter FMLA-68, July 21, 1995, an employer asked whether or not it could count an absence for sickness or injury as falling under FMLA if “the employee does not request that it be counted as such.” DOL’s answer was short and to the point: “So long as the employer is a covered employer, the employee is an eligible employee, and the reason for the absence meets one of the conditions described in the definitions of “serious health conditions” under FMLA, the employer may designate (and so advise the employee) and count the absence against the employee’s 12-week FMLA entitlement even if the employee has not requested that it be counted as such.” Emphasis added here. Really a simple formula: covered employer + eligible employee + FMLA qualifying circumstances = employer may designate FMLA leave.

Granted, this is a federal opinion on application of federal FMLA, but to my experience our Connecticut DOL would take the same view. After all, FMLA is one of the strongest job protection laws and pretty much guarantees an employee’s job will be held for him or her for the full period of available FMLA leave time. Who would not want that strong protection when the need arises?