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Need some advise

MinMin 42 Posts
in FMLA/ADA/Workers’ Comp Vote Up0Vote Down
I have an employee who is out on Workers Comp- I spoke to her about FMLA and I mentioned to her that I would like it to be retroactive to June 1. I mailed her paperwork 2-3 weeks ago (regrading FMLA) and have received NO response. Can I go ahead and make it effective (FMLA) June 1, without her completing the forms. She is on w/c and we do not have any idea when/if she is coming back.

Any comments would be appreciated.

Thank you

Mindy-Washington State
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Comments

  • 4 Comments sorted by Votes Date Added
  • WTWT 376 Posts
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    The employee can certainly ask for FMLA leave and fill out forms to do so. However, if they are not working (for some sort of medical reason) and have taken no action, the responsibility falls on the employer. The general rule of thumb is that the employer designates FMLA leave and does so in writing. If the employee is not so notified, they will try to get 12 more weeks when they are notified. If a worker is out on compensation, they must have seen a doctor and the doctor must have certified that they cannot work. I doubt you can designate retroactively and get away with it but do it now and wait no longer. Paid leave such as compensation can run concurrently with FMLA leave but should be designated as such.
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  • bsabsa 359 Posts
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    I think you can retro back to at least the date you sent your request for medical certification. You should send notification that FML was granted based on the knowledge available to you and include another medical certification request with 15-day deadline. Under other circumstances, an employee can lose FML job protection by not responding. You could "suggest" disciplinary action for not responding to your request for medical certification; although disciplining an employee on workers comp can be risky.

    Uh Oh, I just noticed you are in Washington.... check you state's law too!
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  • MinMin 42 Posts
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    Thank you for the response- I appreciate it- I am going to desigante it effective with the date that I mailed the FMLA forms to her. That way I am safe- I think. Man, this stuff can get confusing.


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  • Don DDon D 9,834 Posts
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    Be sure in your letter that you also state to her what her continuing abligations might be as far as 30 day medical certifications and also tell her when her 12 week maximum FMLA clock will expire. There are lots of bases to cover when negotiating the minefield. Just spent the last two days with two DOL wage/hour investigators who were here on two complaints about FMLA. Very educational!
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