By Michael White, HR Outsourcing Manager, Trüpp.
I have an employee that will be off work for three weeks to recover from a medical procedure. The employee has enough paid time off to cover the time and doesn’t want to use any protected leave (OFLA or FMLA) in case they need it later. Can I designate that time as OFLA/FMLA even if the employee does not wish to?
The short answer is yes. The responsibility for designating leave falls to the employer, not the employee, so it is acceptable to designate leave even if the employee does not return medical certification forms. However, you must notify the employee that their leave qualifies as OFLA, FMLA, or both OFLA and FMLA leave and any time they take off for that purpose will be deducted from the amount of time they have available.
The longer answer is that we recommend you work with the employee to understand why they are opposed to taking protected leave. If they don’t understand the protections offered by OFLA and FMLA, this is a good opportunity to educate the employee on their rights to take protected time off and empower them to take advantage of those rights.