Receiving FMLA notification

maryfmurray

Where do I start! I've got a director that does not notify anyone when an employee is out for a long period of time. I have recently found out from this director that three employees have been out for weeks and 1 employee has been out due to pregnancy. In the end, the four of them should have given FMLA paperwork when they first notified their supervisor. What do I do now? Do I go back and figure out the hours missed, send them a letter notifying them these hours are being applied towards FMLA? You now have XX number of days to comply and return the appropriate paperwork back? I'm confused as to what to do? How do I get this program director to notify me when someone is on leave? How do others get your higher ups to follow policies?

Any Ideas!

POPEYE

You let your "higher-ups" know that they can personnally be held liable and be sued for non-compliance and the company is NOT legally obligated to defend them. When you start talking about their personal pocketbook it generally brings them around.

From a legal standpoint you may not go back and count the already used time if the EE was not officially notified in writing within 48 hours of the leave commencing.

Don D

Sorry to disagree Popeye; but, you can go back and make FMLA reroactive under several circumstances. I'm not sure that supervisory inaction is one of those reasons, but it can be successfully done according to court rulings that are about a year old.

POPEYE

You are correct under certain circumstances. However, it was explained at the last seminar that I attended, that you may not legally start counting leave entitlement time until the EE has been notified in writing. Although I have and I'm sure that others have recorded retro time in the past, I'm not sure it would stand with the DOL or the court.

Don D

Yes, in fact the court case, I can't cite it, specifically found that the employer was entitled to go back and retro the whole thing. It was based on the court's conclusion that the ee got what the law intended, the leave in the first place, and the law could not be interpreted to suggest that an ee is entitled to more than 12 weeks. Non notification due to employer non-feasance is one thing. But, for an employer to retro FMLA under reasonable circumstances is concluded by the court to be quite another. The start date does not hinge on the date that notification is given.

Margaret Morford

Don D.

I think it was the Wolverine case, but am not sure. However, in the case the employee had gotten 7 months of continious leave - more than twice what FMLA would have given her. The court believed that to grant her 12 more weeks would fly in the face of the intent of FMLA. It also found that the employer's failure to notify was an administrative error. The court didn't address back dating a day here and a few days there, especially when the supervisor (agent of the company) forgot to notify anyone. Most attorneys do not interupt the case to give employers a free hand in backdating FMLA.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

njjel

From my experience this company would not be able to retro this leave in the circumstance eplained above. I would notify them now that they are on FMLA leave effective with the date of the letter.