Question: Is an employer still required to issue a Family and Medical Leave Act (FMLA) notice to an employee if the employer decides to continue paying the employee while on leave?
Answer: Even if the company has a policy that exceeds the rights and benefits of the Family and Medical Leave Act (FMLA), we recommend designating the leave as FMLA, concurrent with your internal policy, assuming the reason for leave qualifies under the FMLA. If you do not do this, you may find yourself in a situation where an employee takes leave under your internal policy and then asks for an additional 12 weeks under the FMLA. FMLA is a protection leave providing job and benefit security for a specific period of time, so whatever wage replacement an employer chooses to pay employees while on leave is separate from FMLA.
Additionally, not providing the notice if you have knowledge that the reason would qualify for FMLA might constitute an interference with an employee’s FMLA rights. Employers must provide an employee notice of their rights within five business days of learning of the need for leave. We also caution that if a practice is implemented to pay one employee while on leave, it should be replicated for every employee on leave.