FMLA Letter Wasn't Issued

Aurora IL

I just received a call from an employee who has been on leave for the past 9 weeks due to medical issues. We've just realized that we never issued the initial FMLA notification to the employee.

What are our options now?

As long as he has proper documentation from his doctor releasing him for work, we will reinstate him to his position.

Will we still be able to count the 9 weeks toward his FML balance?

davids

My understanding is that if you invoke FMLA prior to the employee returning to work, you can make it effective retroactive to the first day of the absence. Once the employee returns to work you cannot invoke it retroactively.

Aurora IL

Since I wasn't getting much of a response on the forum, I bit the bullet and called our legal counsel. (Can't wait to get the bill )

Legally, employers cannot retroactively designate a leave as FML.

He has advised to send the letter to the employee anyway. If the employee needs additional leave in the future and we may have to approve additional FML.

I'm sure I'll seek additional legal counsel if/when this happens.

stilldazed

If your employee has not yet returned to work, get the letter out confirming the FMLA designation from the start of the absence, as long as medical certification is available. If you have access to case law history, find Ragsdale v Wolverine World Wide, Inc (122 S.Ct. 1555 (US 2002)) for a Supreme Court ruling favorable to the employer when the employer failed ot get a written notice out to a worker confirming FMLA protection on a LOA. In that case the EE's LOA extended beyond 12 weeks, approved by Wolverine, and the employee (Ragsdale) challenged for an additional 12 weeks on the basis that Wolverine didn't confirm in writing that any of the 30 weeks counted as FMLA.

best wishes.