From the Hotline: Reduced Schedule: FMLA or PTO?

Question: What is the best course of action if an employee who is on a reduced schedule (leaves for 30 minutes every day) due to chemotherapy treatments but refuses to complete the Family and Medical Leave Act (FMLA) paperwork? He just wants to use PTO hours which he has plenty of. Can the employer mandate FMLA even if the employee doesn’t complete the forms?

Answer: We recommend talking with the employee to help him understand that the Family and Medical Leave Act (FMLA) leave designation is for his own protection. He may be fearful that he may need it if his condition worsens, or may be unaware of the protection it provides. This may also be a good time to discuss his eligibility for Americans with Disability Act (ADA) protection.

An employee has an obligation to respond to an employer’s questions to determine if an absence is potentially FMLA-qualifying. And, if an employee fails to respond to an employer’s reasonable questions regarding the leave request, the employer may deny FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying. It is up to the employee to get the information about his or her medical condition from the physician — not the employer’s responsibility. And if the doctor charges for the form, that is also the employee’s responsibility. If the employee does not provide the necessary documentation, the employer can follow company rules and policies for time off for non-FMLA leaves with respect to job and benefits protection.