Whoops! FMLA Designation of Leave

hr410

We had an employee go out on sick leave over 2 weeks ago. She is pretty ill, most likely would qualify as having a serious health condition under FMLA, but the employee has not been notified of her FMLA leave eligibility (nor have we asked her to certify with a doctor - yet). We are acting today to get certification from her and to notify her of FMLA.

My question is -- should (or can) we count the last few weeks of leave taken against her 12 weeks of FMLA leave? Since we did not give her notice, I am not sure what to do. Any help would be greatly appreciated.

Joy1

Unfortunately, you have stepped into one of the great ambiguities of the FMLA. The DOL says that if you fail to designate FMLA leave, you cannot count the time taken against the employee's 12 week allotment. However, the Supreme Court has disagreed (in a case called Ragsdale). Now, it is not entirely clear whether an employer can count leave taken against the FMLA allotment if the employer does not tell the employee that the leave is FMLA leave within a few days of the request for leave. DOL has not cleared this up yet, so it is always better to designate leave as FMLA (or not) as soon as you have all of the information you need to do so. In your case, it is up to the employer whether it wants to designate FMLA leave retroactively -- most conservative employers would not do so in order to steer clear of the DOL and any FMLA claims.

HR36

Unfortunately we really have to crank down on leave to get the FMLA paperwork out the door ASAP after 3 days of absence. It is a pain, but dealing with a misstep on the FMLA is worse!