FML has to begin at some point. No need to go into what protections it offers whenever or for what ever reason that there is a qualifying event at some point. My point is that under certain circumstances FMLA allows three full consecutive days of incapacitation to lapse before FMLA begins. The reason is that you can't begin FMLA for ever minor illness out there that will create a sick leave absence. We allow that incapacitation to be five full consecutive days instead for the same reason, so that you don't have to begin FMLA for every minor illness that will create a sick leave absence. This can be done as long as the same standard is used for every employee, not just in our department, but each employee citywide. Our sick leave policy is in effect during those five days just like it would be in effect if we assigned FML after a three day lapse.
"More than three days" does not mean 'just three days'. It means that you can't set a threshold of less than three days. You can allow more if it benefits the employee under your sick leave policy, you just can't do less than what FMLA provides. There is nothing that disallows a two day longer time of incapacitation threshold so that an employee may return to work before we start medical certification requirements under FMLA. Could be that no one else is doing this or even thought of doing this but it is certainly permissible. The benefits we have for the additional two days are that it is more friendly to our employees, less costly to the employee for absences of a minor nature, and having less administrative time spent on incidences of a minor nature.
If my statement is used to broad brush each FMLA circumstance then that would not work any better than any event that would qualify as FMLA. Circumstances vary. (Not saying that is what you are doing TX but I have to explain as best I can.) But suffice it to say that if an employee is out and has called in sick with a cold, the employee is under the company's sick leave policy. If on the fourth day the employee calls in sick then it is allowable at that time under FMLA to request medical certification and begin FMLA procedures. Allowable. . not wrote in stone that FMLA must begin. We extend our sick leave policy to five days. If an employee calls in on the sixth day, being "more than three days", we begin FMLA procedures. Any notification procedure begins at the start of a qualifying FMLA event.
As a reminder this is not an isolated decision done in a vacuum. It is a decision made at the city's highest H/R level with the concurrence of the city attorneys that, of course, practice employment law.