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Surprise – employees often try to game the system and structure their paid, and even unpaid, leaves of absence for maximum absence utilization. Particularly for women who are pregnant or employees who know they are going to have surgery, which will take them out of the office for the FMLA maximum entitlement of 12 workweeks, the desire to preserve their FMLA entitlement is common. Often they do not want pre-surgery to be counted or pre-natal care against their 12-week entitlement.

Desire is one thing and allowing them to game the system is another. Employees do not have the option of choosing whether their time can be designated as FMLA leave; that is something that is solely within the right of the employer where the employee meets all of the conditions set forth under the federal law. Notably, it is the employer who issues the designation to the employee via the form Form 382 (link here). Could an employer choose not to designate all FMLA-qualifying situations against an employee’s leave entitlement? Sure, but it’s the company’s decision to do that, not the employee’s to make.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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