Legal Question in Medical Leave in Washington

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?

Asked on 11/16/04, 8:53 pm

1 Answer from Attorneys

Craig Crispin Crispin Employment Lawyers

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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Answered on 11/18/04, 11:44 pm

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