3 Day Absence Rule/2 Day Notification Rule

Audrad

We are an employer covered by FMLA.

We had an EE request one full day of absence for outpatient surgery on Friday, May 28, 2004. He told us that it was almost a certainty he would return to work on Tuesday, June 1. (We were closed for Memorial Day on Monday, May 31.)

He called on Tuesday, June 1 and stated he was not yet feeling up to par as a result of his surgery and requested to be off Tuesday, June 1 which we, naturally, granted.

He called on Wednesday, June 2 and again stated that he was not up to par but would absolutely be able to return on Thursday, June 3.

He did return on Thursday, June 3.

Since he had now missed "THREE FULL CONSECUTIVE DAYS" we prepared our Employer Notification [to Employee] of FMLA Designation. However, one of our HR clerks stated that since we, as an Employer, can only retroactively designate two days of past absences as FMLA, we should really be doing the paperwork on the first day of absence or even prior to the absence in the event that it becomes FMLA qualifying. (????)

I say you can't possibly designate the time as FMLA until it becomes FMLA qualifying and therefore, should not prepare any paperwork until immediately after the qualifying event occurs.

In reading the regs on-line today, I do now understand there needs to be "MORE than three consecutive days" and those are CALENDAR days and not WORK days so, in this particular scenario, the qualifying event would have actually occurred on Monday but regardless of that issue how do you address the fact that as an employer you have an obligation to notify the employee within 2 days that the time off will be designated as FMLA.

Please understand that we, as an employer, tend to always error on the side of being very generous to our employees when it comes to attendance issues but I just want to ensure we understand our obligations and are applying them correctly and consistently.

smaces_twin

Why did you not give him FMLA papers when you were made aware of his outpatient surgery?

Don D

In hindsight, I think you should have given her the paperwork when she advised you of the operation, unless you rule that she did not give you sufficient notice (as defined at 29 CFR 825.302) and could have.

The three day rule is out the window when either of the following applies:

A) Treatment two or more times by a health care provider. (surely she saw the doctor prior to, during and following the surgery)

Treatment by a health care provider on at least one occasion resulting in a regimen of continuing treatment under his supervision.

System

>one of
>our HR clerks stated that since we, as an
>Employer, can only retroactively designate two
>days of past absences as FMLA

I don't think your clerk is correct, at least since the U.S. Supreme Court's Ragsdale decision in 2002. After an ee requests FMLA, you have a certain amount of time to designate it (two days?). But I'm not sure there's any penalty if you miss the deadline.

Besides, I'd think that the employee would want it to be FMLA, since it would give him some protection.

Good luck.

James Sokolowski
HRhero.com

SDDCHR

You don't need to wait until "after" the qualifying event occurs to send out FMLA notification. And, you can still send it out now even after the 2 days.