New to FMLA, please help

Employee has been off work a day here, two days there, etc. for the past 6 weeks due to what has finally been diagnosed as an aneurysm. When an employee calls in sick how can you designate it as FMLA? She has missed several days in these 6 weeks and I am sure is looking at surgery. Should we have done something during these past weeks to classify any of those days as counting toward FMLA? I'm guessing we cannot go back now and say those were FMLA days, right?  Can we only call it FMLA if she misses 3 consecutive days?  What if the next week she only misses 1 day?


  • 3 Comments sorted by Votes Date Added
  • FMLA is complicated so you should read up on it and consult with your attorney.  You generally have only 5 days to notify the employee of FMLA designation once you have enough information to determine it qualifies for FMLA. But the new FMLA regulations give employers an opportunity to designate leave retroactively in some circumstances:

    See Sec. 825.301 (

    "If an employer does not designate leave as required by Sec.  825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee
    as required by Sec.  825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee.
    In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave."

    Your other question is answered at

    "Eligible employees may take FMLA leave on an intermittent or
    reduced schedule basis when medically necessary due to the serious
    health condition of a covered family member or the employee or the
    serious injury or illness of a covered servicemember. See Sec. 
    825.202. Eligible employees may also take FMLA leave on an intermittent
    or reduced schedule basis when necessary because of a qualifying
    exigency. If an employee needs leave intermittently or on a reduced
    leave schedule for planned medical treatment, then the employee must
    make a reasonable effort to schedule the treatment so as not to disrupt
    unduly the employer's operations.
    [73 FR 68088, Nov. 17, 2008]"
  • I would guess that retroactively designating leave knowing that surgery is coming up when the cause of failure to designate is company mistake will probably count as "harm or injury to the employee" when you fire them under your attendance policy for failure to return from surgery recovery after exhausting leave and absence.
  • The new FMLA regulations have an example of what could be considered "harm" and another for what wouldn't. (see part e)

     "For example, if an employer that was
    put on notice that an employee needed FMLA leave failed to designate
    the leave properly, but the employee's own serious health condition
    prevented him or her from returning to work during that time period
    regardless of the designation, an employee may not be able to show that
    the employee suffered harm as a result of the employer's actions.
    However, if an employee took leave to provide care for a son or
    daughter with a serious health condition believing it would not count
    toward his or her FMLA entitlement, and the employee planned to later
    use that FMLA leave to provide care for a spouse who would need
    assistance when recovering from surgery planned for a later date, the
    employee may be able to show that harm has occurred as a result of the
    employer's failure to designate properly. The employee might establish
    this by showing that he or she would have arranged for an alternative
    caregiver for the seriously-ill son or daughter if the leave had been
    designated timely."

    This defintiely looks like something you should discuss with your attorney before taking any action.


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