Can You Force an Employee to Use FMLA?

When the Family and Medical Leave Act (FMLA) was passed back in 1993, its purpose was to provide employees job protection when they needed time off to attend to their own and family members’ medical issues or other needs. FMLA requires employers to provide certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that the employer continue an employee’s benefits during the leave period and reinstate the employee to the same or equivalent position. However, sometimes an employee does not want to use FMLA, even when they have a qualifying event. For example, a pregnant employee may be placed on bed rest and need four weeks off from work. To preserve as much time as possible to bond with the baby after giving birth, the employee may state she does not want to use FMLA. A common question we get at Employers Council is, “Can I force an employee to use FMLA?”

In general, the answer is yes. The Department of Labor, through its opinion letters, as well as several district and circuit federal courts, have held that employers can require an employee to take FMLA. Courts have reasoned that whether an employee requested FMLA leave is irrelevant because the statute does not specify that FMLA leave be granted only when an employee wishes it. Instead, if the required conditions for leave are met, namely, the employee is eligible and has an FMLA-qualifying reason for leave, the employer is required to provide the employee with leave and may designate it as FMLA leave. However, employers must proceed with caution to ensure that the employee does, in fact, have a qualifying reason for FMLA, and the involuntary FMLA does not interfere with an employee’s rights to use FMLA at a later date.

Qualifying reasons for FMLA include the birth of a son or daughter (or placement of a son or daughter with the employee for adoption or foster care), to care for an immediate family member with a serious health condition, for their own serious health condition, a qualifying exigency arising out of an immediate family member’s covered active duty, or to care for a servicemember who is an immediate family member. Before requiring an employee to use FMLA, an employer must ensure that the employee needs to take leave because of one of these types of qualifying events, and is, in fact, eligible for FMLA. Several circuit court decisions have held that an employee may have an interference claim under FMLA if the employee seeks FMLA leave at a later date and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.

When FMLA questions arise, please don’t hesitate to contact Employers Council for assistance.