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.

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