Family and Medical Leave Act (“FMLA”) creates two interrelated substantive rights for employees who qualify under the Act. First, the FMLA provides employees with the right to take up to 12 weeks of leave (either all at the same time or intermittently) for personal medical reasons, to care for their newborn or newly adopted children, or to care for family members with serious illnesses. Second, the FMLA gives employees the right to be restored to their original position or to a position equivalent in benefits, pay, and conditions of employment upon return from exercising their rights to FMLA leave. Violation of the FMLA gives rise to two types of claims – FMLA interference (blocking the use of FMLA) and FMLA Retaliation (taking adverse actions against an employee for using FMLA, including wrongful termination)(Best Law Reads: What Is FMLA Interference?; FMLA Retaliation Tips – Call The Right Attorney; My Employer Demoted Me Because I Took FMLA Leave! I Need The Best FMLA Retaliation Lawyer In Ohio!)
What happens if my job forces me onto FMLA leave?
Best Employment Lawyer Answer: Because the FMLA protects an employee from being wrongfully fired, demoted, or having any adverse employment action taken against him or her for using FMLA, the only real consequences of an employer forcing an employee to use FMLA leave is the reduction of time available to the employee for leave and being off work without pay. Essentially, by forcing an employee to use FMLA before an employee wants to, the employer starts the clock running down on the 12 weeks of available time.
Can my job force me to take FMLA if I don’t need leave?
Best FMLA Lawyer Answer: It depends.
The first part of the “it depends” answer is recognizing that the key part of this question is the “if I don’t need it.” An employer may “interfere” with an employee’s FMLA rights by forcing the employee to take FMLA designated leave that the employee either did not request or need. Critically, an involuntary leave claim requires an employee to have been forced to take FMLA leave even though the employee does not have a “serious health condition” that precludes him or her from working. In Wysong v. Dow Chem. Co., 503 F.3d 441, 449 (6th Cir. 2007), the United States Court of Appeals for the Sixth Circuit held that an involuntary-leave claim arises under 29 U.S.C. § 2615(a)(1) when: “an employer forces an employee to take FMLA leave when the employee does not have a ‘serious health condition’ that precludes her from working.”
The second part of the “it depends” answer is more of a wait and see that will not be know at the time the employer forces onto a FMLA leave. Specifically, the United States Court of Appeals for the Sixth Circuit in Wysong held that “the employee’s claim ripens only when and if the employee seeks FMLA leave at a later date, and such leave is not available because the employee was wrongfully forced to use FMLA leave in the past.” Stated more simply, forcing an employee onto protected medical or family leave causes no damages under FMLA until the time the employee has used up all of the 12 weeks and still needs more time, which the employer than refuses to provide. Essentially, if the employer forced the employee to use up one week of FMLA leave, but that employee only needs six weeks during the year, the employee has not lost any protected time off because the employee still has a surplus of time on the year. Thus, if there is leftover FMLA protected time off, the employer gets away with forcing the employee on leave. On the other hand, if the employee is denied FMLA leave after using the entire 12 weeks because the employer forced the employee to use up some of that time, the employer will likely be liable for FMLA interference.
Moreover, if the employee does not request the time beyond the 12-week period, the employee will not have an FLMA interference claim based on forced earlier FMLA leave. See Walker v. Trinity Marine Prod., Inc., 721 F.3d 542, 544 (8th Cir. 2013); Hicks v. Leroy’s Jewelers, Inc., No. 98–6596, 2000 WL 1033029, at *3–4 (6th Cir. July 17, 2000); Cf. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 175 (2d Cir.2006) (“[F]orced leave, by itself, does not violate any right provided by the FMLA.”); Foster v. New Jersey Dep’t of Transp., 255 Fed.Appx. 670, 671 n. 1 (3d Cir.2007).
Now, forcing an employee that has a disability or is perceived to have a disability onto unpaid leave despite the employee being able to do the central functions of the job will likely be a problem under the Americans with Disabilities Act (“ADA”), but this is an FMLA analysis blog. But the intersections and intricacies of different employment laws is why it is important to consult the best employment law lawyers near you about your specific situation.
Can my employer make me use FMLA even if I have PTO or vacation days available?
Best FMLA Lawyer Answer: Yes. In reality, neither the employer nor the employee has much of a choice once a qualifying request for leave has been made by an FMLA eligible employee. Recently, the Department of Labor (“DOL”) issued an Opinion Letter directly and expressly stating that employers are prohibited from delaying the designation of time off as FMLA leave when it so qualifies. This is true even if an employee and the employer would both prefer to delay the designation or allow the employee to use paid time off (“PTO”) before starting the clock on the FMLA’s 12 weeks. The question before the DOL was whether employers had the ability to permit employees to exhaust some or all available paid leave before providing FMLA leave where the reason for leave is FMLA-qualifying. DOL said absolutely not and that as soon as an employee reveals a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may designate the leave as anything other than FMLA protection. 29 C.F.R. § 825.220(d). Thus, when a company has sufficient information to know that a leave request would qualify under the FMLA, the employer must designate it as FMLA leave without delay.
That being said, employers may have additional legal options to provide further leave on the back end under the ADA. (Best Law Read: Is Time Off A Reasonable ADA Accommodation?).
If I’m forced onto FMLA leave, can I get paid time off?
Best Medical Leave Attorney Answer: The FMLA does not require employers to pay employees while on leave. Thus, employees who utilize FMLA are not entitled to be paid while they are on leave. However, an employee can opt to use PTO concurrently with the FMLA leave.
Can my employer force me to use PTO concurrent with my FMLA leave?
Best FMLA Lawyer Answer: When an employee’s leave qualifies both under the FMLA and under the employer’s paid leave policy, the employer has a choice. The employing company can allow the employee to save the PTO for use after the FMLA leave. Alternatively, the employer can require that the employee use his FMLA leave and PTO concurrently. See Ney v. City of Hoisington, Kansas, 264 Fed.Appx. 678, 68 n.l (10th Cir.2008); Strickland v. Water Works & Sewer Bd. of Birmingham, 239, F.3d 1199, 1205, (11th Cir.2001); Slentz v. City of Republic, 448 F.3d 1008, 1010 (8th Cir.2008). Typically, employers will do the latter and require employees to use all PTO allowances concurrent with FMLA leave.
What should I do if my FMLA rights are being violated?
Best Ohio Employment Lawyer Answer: The most important thing that you can do if your Family Medical Leave Act (FMLA) rights are being violated, be it FMLA interference or FMLA retaliation, is to call the right attorney as quickly as possible to schedule a free and confidential consultation. The FMLA is complicated, and many other laws may also come into play. The best option is not to wait. Call our top attorneys in Cleveland, Cincinnati, Columbus, Toledo, Youngstown and Detroit. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under the FMLA, ADA and Ohio employment law. Our lawyers will be here to get you the FMLA leave that you are entitled to or fight to get you paid for being wrongfully fired.
This employment law website is an advertisement for legal services on a contingency basis at Spitz, The Employee’s Law Firm. The information available on this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss make me take medical leave?”, “can I sue my employer if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to not pay me while I’m off work on FMLA?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, LLC, Brian Spitz, or any individual attorney.