If an employer provides medical leave for its employees, that leave might be treated as over and above the 12 weeks of leave required by the Family Medical Leave Act of 1993 (FMLA), which applies to employers with 50 or more employees.  Most employers intend that any medical leave they grant to employees be counted toward the 12 weeks provided by the FMLA.  In order to achieve that result, however, the employer must follow the procedures set forth in the FMLA regulations.

Those regulations essentially require the employer to give the employee timely notice that the leave he or she has requested will be counted toward the employee's 12 week FMLA leave. If the employer fails to provide that notice, then the leave being taken will count only as employer provided leave, and the employee will still have the entire 12 week FMLA leave intact.  "Timely" notice under the FMLA regulations means that the employer must provide notice within 2 business days after the employer learns that the leave qualifies for FMLA leave (absent extenuating circumstances).

These regulations have spawned much litigation.  The federal courts have split, with some saying these regulations are invalid because they go further than Congress intended in provided FMLA leave rights to employees.  Other federal courts have upheld these regulations.  The federal court that interprets federal law for New Hampshire has not ruled on this issue.  It is likely that this matter will be resolved by the U.S. Supreme Court.

In the meantime, employers should follow the notice and other requirements imposed by the regulations to ensure that medical leave counts against the employee's FMLA leave, as well as any employer provided leave.