forced to use FMLA when I still have sick leave
I have over 400 hours of accrued sick leave and
am in the process of testing for an ongoing but
undiagnosed medical condition requiring periodic
absences. My employer claims that they are required
by law to place me on FMLA leave. They also state
that it protects me from disciplinary action for
possible sick leave abuse. I have not requested FMLA.
Can my employer force me to use FMLA to avoid disciplinary action?
Is my employer 'required by law' to place me on FMLA even against my wishes?
Can I just get my doctor to certify that I am sick to avoid 'discipline' and save FMLA time for the possibility of running out of accrued time in the future?
If I agree to FMLA now to cover sporadic absence, doesn't that ruin my chances of using the 12 weeks when my sick
leave has run out (if it ever does)?
Can an employer discipline and/or fire me for using
accrued sick leave if I get my doctor to verify that
I have an ongoing serious condition?
1 Answer from Attorneys
Re: forced to use FMLA when I still have sick leave
An employer is permitted (though not required) to place an employee on FMLA leave if he or she qualifies, even if the employee does not desire it. The FMLA designation does not equal sick leave. The FMLA is unpaid unless the employer designates otherwise. You may use sick leave concurrently with FMLA, but cannot avoid using FMLA if the employer wants to require you to use such leave (and the leave is otherwise qualifying). An employer may terminate an employee after 12 weeks of medical leave, whether covered by sick leave or not. (This does not necessarily mean that the employer could terminate if you still had sick leave -- that is a different question.)
This is not specific advice and does not create an attorney-client relationship. You should seek legal counsel to assist with your case and advise you regarding the applicable limitations periods and duty to mitigate damages.
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