How long after the fact can EE apply for FMLA?

Ruskanen

I have an employee that was absent for four days in November due to personal illness. For two of those days, she requested available paid time off. A week after her absence I approached her and told her about the possibility of being eligible for FML, especially if she was going to have to be absent again for the same illness. We have a general information sheet about FMLA that we give employees when they are absent two consecutive work days due to personal or family illness. It gives the basics and tells them to see HR for more information. She did not approach HR. Now, since she is running low on unpaid time off, she wants to know if she can request a leave under FMLA for the four days in November she was absent. How long does an employee have to apply for a leave?

HRQ

My understanding is you can't backdate FMLA. Start counting the time off now.

There are no "magic words" an employee needs to use to request FML. If you have reason to believe the time off may qualify as FML, it is your resonsiblity to start the process. You can send her a letter provisionally designating her Leave as FML, instruct her to provide medical certification, etc. etc. etc. If she refuses to cooperate, you can take appropriate action, such as deny the leave and make her come back to work.

Who says HR people don't have to be mind readers? We do it on a daily basis. x;-)

LindaS

I would not go back to November and grant the time off. You provided the employee with information regarding possible FMLA rights and she chose not to follow-up on it. I agree that as employers it is our responsibility to determine a potential FMLA situation and react accordingly and I think that is what you did back in November. She made the choice to not follow-up on it and I think 4 months is way too long to go back.

Regarding the issue of backdating FMLA, I spoke with an attorney regarding this issue and I was informed that if there is an FMLA situation and the employee had a negative impact due to absences that would fall under FMLA, you CAN go back farther than the three days and designate FMLA time, as long as the employee agrees.

Balloonman

"I am sorry employee Jane Dumb (or Doe)but we cannot go back four months and now deem it FMLA. This is why I gave you the information sheet and discussed it with you then as if it would have qualified I wanted to help you do what was best for you". "Since you never followed up there is nothing I can do now. But I will work with you regarding any future abscenses that qualify for FMLA, assuming you are not terminated for attendance prior to that". :-)
My $0.02 worth.
DJ The Balloonman