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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37846
Experience:  Retired (mostly)
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In the past my employer did not force an employee to use FMLA leave at the same time they

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In the past my employer did not force an employee to use FMLA leave at the same time they were on paid sick leave. Now they are forcing us to use FMLA leave concurrently with our paid sick leave. Is that legal?

There is no law that requires an employee to use FMLA leave during an absence from work. Forcing an employee to use FMLA leave is unlawful and creates a claim against the employer -- however, this claim only "ripens" at the time that the employee attempts to use FMLA leave at a later time, and the leave benefits are unavailable, because they were "used" by the employer without the employee's consent.

So, the employee must keep track of the unconsented to FMLA leave benefits required by the employer, send a letter to the employer stating that the employee does not wish to use FMLA leave benefits for a particular absence. That way, there will be evidence that the employer was on notice that its actions were without employee consent.

Note: The employer can terminate the employee, unless the employee is using FMLA benefits to protect his or her right to return to work. So, there is a risk, here, that by refusing the benefits, the employer will use an employee's absence as an excuse to terminate the employee. However, FMLA leave is not authorized by federal law for any leave of absence which is not reasonably expected to last for more than three full calendar days. See 29 C.F.R. 825.115(a). So, if the employer is requiring FMLA leave for absences of a shorter period of time, then this is a clear violation of the law.

The botXXXXX XXXXXne here is that forced FMLA leave is unlawful. However, if an employee reasonably expects to be absent more than three days, then the employee may be wise to request FMLA leave as a means of preserving his or her employment rights. Otherwise, the employee may find him/herself with no job, when the employee returns from sick leave.

Hope this helps.

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Customer: replied 3 years ago.

I work in a grain mill with a unionized workforce. Our contract provides us with an S/A(sickness/accident) benefit that pays us a weekly benefit after the first full week of being off work. In the past we were not required to use FLMA leave while drawing this benefit for up to a six month preiod. Our contract also protects our job for a one year period of absence. Now we have a new HR person who is forcing us to use FLMA leave concurrently while on S/A leave. Is this legal?

Under 29 C.F.R. 825.220(d), "Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representatives) cannot 'trade off' the right to take FMLA leave against some other benefit offered by the employer."

The above-quoted regulation fits closely to what your HR person is actually doing. By forcing employees to use FMLA leave concurrent with their preexisting collective bargaining agreement, the employer is trading off FMLA benefits for the benefits of the contract.

Therefore, in my opinion, the employer's actions are illegal, under federal law.

Hope this helps.
Customer: replied 3 years ago.

Does this also apply in Nebraska? Also, our headquarters are in St. Louis if that makes a difference.

The FMLA is a federal law. The regulation applies in every U.S. jurisdiction with equal force.
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