when an employee has been approved for intermittent fmla they are informed when calling off due to the fmla illness they must state it is "fmla" and not just "im sick". This is understandable because hr needs to know how to handle the absence, however, if the employee does not say "fmla" for what ever reason then upon their return inform hr it was indeed fmla, would the company be required to excuse the absence?

29 CFR 825.303 (b) "The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed."

the company has a different interpretation of the language than i do.

hello: anyone wanna tackle this one?

Maybe if you tell us what the company's interpretation is. It's hard to answer with only part of the information.

the company is contending that the language is refering to the point in time prior to being approved. for example, the employee is missing work and the company has an obligation to offer fmla whithout the employee expressly asking for it.

just wondering if anyone has ran across this before

I tend to side with the employer on this one. If you have been approved for intermittant FMLA, there is no possible reason for not informing them at the time that you call in that this is under that protection. I would be very suspicious of an employee who only notified me after the fact of the absence that it was FMLA related.

cbg: you appear to be answering this based on your opinion and i can understand the viewpoint, however, it was not an opinion i was looking for. what i am looking for is someone with the knowledge of the INTENT of that statement. being suspicious of an employee doe not make it a legal position. i guess this is one for dol.

No one can give you the intent of the statement except the ones who wrote it, so if an opinion is not sufficient for you, I guess you're right - you'll have to ask the DOL.

i beg to differ. if this is a "forum for answering general questions about labor and employment law", then answering a question should be done with the assumption that your answer might effect someones job. knowing the intent is not limited to the authors who wrote it but also to anyone who knows how its been ruled on in the courts. :rolleyes:

29 CFR 825.303 (b) "The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed."

That language refers to how initial need for FMLA is established. You have already been approved for intermittent FMLA and it is completely reasonable and lawful if you are out absent for your employer to require you to differentiate between being absent due to a medical condition that falls under your FMLA certification and being absent due to illness for a different medical condition - having a cold, for example.

If you call in sick a half-dozen times (for example) and your employer attempts to address your attendance problem, you don't get to retro-actively assert that all those absences fell under your FMLA certification and you just didn't tell them at the time.

YOU are the one that is demanding the exact intent. We can provide GENERAL information. We cannot provide specific advice. For that, you need to consult an attorney in your state - or, the regulatory agency for the law you are concerned with.

If anyone knows of any case law specific to your question, I'm sure they will provide it. Since I don't see anyone else lining up to answer your question, however, you're stuck with me until or unless someone else comes along. I've given you my answer. If you are unhappy with it, you are free to look elsewhere.

I certainly hope that no one is allowing their job to be affected by the answers they get on this forum. As I said, we can only provide general information, and we can only provide that based on the information the poster chooses to provide. The responders here are all acutely aware that their answers are only as good as the information we have and that at any time, we may learn that the poster either innocently or deliberately withheld information that would change the answer. If anyone has been using these forums as a substitute for specific legal advice with regards to their job situation I would most assuredly suggest that they reconsider.

thank you Beth3 for your answer. it was written to address the intent of the statute which was what i was looking for. this fourm could use more like you. as for cbg; if i came across a little short with you, it's only because you seem to be very arrogant and rude to people who ask questions. if you can not answer a question like Beth3 did, then simply say "i'm not sure, it's just my opinion". a little kindness goes a long way.

I don't think there was anything arrogant or rude in my initial answer. Yes, I became frustrated with you when you began to argue with me. You might take a piece of your own advice if you intend to post here.

Tuna,

Fundamentally I agree with Beth and cbg on this. There is absolutely no reason whatsoever that an employee could not designate the leave as FMLA at the time of notification.

HOWEVER....


The DOL has issued some very strongly-worded opinion letters on the subject of notification. I can give you those links, if you desire. Let me give you my standard disclaimer about DOL opinion letters: they are very situation specific, and written as such. Although these opinion letters do give insight into DOL' s attitude toward general situations. The general opinion of the DOL:
1. The employee has the right to assert intermittent leave, when certified to do such.
2. An employee can be required to follow the same notification procedure for the notificaiton of FMLA leave just the same as any other type of leave, providing it is not in direct conflict with the statute. For instance, if the company policy is to e-mail or voice mail your immediate supervisor for calling off sick, the employee can be required to notify the immediate supervisor of the FMLA leave in the same manner. An employee may be disciplined for not following appropriate procedural guidelines.
3. An employe may be disciplined for not providing notice for forseeable absences. The DOL has stated numerous times that this is approximately 2 business days. For instance, I know on Monday that I have an FMLA absence occurring on Friday. If I don't notify my employer that I have an FMLA absence by Wednesday, I can be disciplined for that.
4. To address your biggest issue most specifically, 29 CFR Part 825.208 stipulates that an employee must must give enough information when requesting leave for the employer to determine that the leave qualifies under the Act.
5. The strongly-worded opinion letters, as well as the code of FMLA, provide that the notificaiton periods cannot be any more stringent than the law allows. For example, company policy requires a call 1 hour prior to start time to notify of an absence, else a written warning. An FMLA covered employee having a legitimate FMLA absence cannot be assessed this penalty as long as the absence is not forseeable, and they gave notice to the employer that their absence was for FMLA within about 1-2 business days.

In light of the above, my advice is this. The law very much allows intermittent leave, and to call off for this leave with much less notice than what is desirable to most all employers. The law also allows for an employer to assess a penalty against an employee for failure to follow the proper notification procedures guidelines, and to also assess penalties for failure to give forseeable notificaiton. I agree that there is no reason for an employee not to designate the leave at the time that the leave is requested, and the law even provides for such; however, given the strongly-worded opinions of the DOL with regards to the timeline for notification, I would not test it. As a matter of fact, I am not aware of a judicial opinion on this. The DOL allows for the assesment of penalties for failure to notify and for procedural failure, but NONE OF THESE PENALTIES INCLUDE DISALLOWANCE OF THE LEAVE AS NON-FMLA.

Here is what I would do. The next time an employee calls off for work, give them two days to designate the leave as FMLA. If the employee fails to validate the leave as FMLA within the two days, then call them in and have a talk. If they then tell you that "Oh that was an FMLA day" to cover their ***, then you should still designate the leave as FMLA, but discipline them anyway for the failure to provide a timely notice.

Do I think that the company is right? You bet your britches I do. But being right, and allowing the employee to designate the absence as FMLA leave DESPITE THIS will cost the employer NOTHING. If a judicial review (court case) proves you wrong, it could cost you ALOT.

Oh, and let me present a possible scenario to you where the employee may have good reason not to notify you at the time of the leave that it is for FMLA reasons: they don't know themselves.

An employee calls off for not feeling well, under the weather. A little later, the employee discovers that their hypertension and diabetes are acting up.

Now mind you, most people with sugar and HBP problems can recognize when these are acting up, but what if the person has been recently diagnosed, or the symptoms are atypical?

I have only had high blood pressure twice in my life. The first time was when I had bronchitis/pneumonia, and some decongestants raised my pressure. I knew I was infected when I saw my doctor, but that's not what made me go. I WENT BECAUSE I KNEW I WAS DYING BUT DIDN'T KNOW WHY. Sure enough, pressure was up. By the way, the other time my pressure was up, I WAS DYING (anaphylactic shock). My point to this story is that a pervasive feeling of imminent death is not a typical symptom of high blood pressure.

FOOD FOR THOUGHT....

thank you bears00: long-winded can be a good thing. dispite how it started, this has been an very informative thread. also, i would like to see those dol letters if you could pass on those links. thanks again.

They have 2 business days after they return to work to inform you that their absence was due to FMLA.

And this post is two years old. I'm sure the initial situation has been resolved by now.

probably so. I'm new at this.

probably so. I'm new at this.
JATyree, we ask that you not resurrect old posts, so would appreciate it if you check dates before responding. Thanks. :)

I'll be sure and do that