FMLA letter

if we have an employee that has been out for almost a year, never got the FMLA letter out to him, have we in good faith really exhausted our legal requirements, or do we now have to send him a letter and start the clock? somehow he slipped through the paperwork crack.


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  • It depends on who you ask. The U.S. Department of Labor's regulations say that you can't retroactively designate leave as FMLA leave, but several federal courts have struck down that rule. The result is that it's not clear whether the rule applies, and the answer may depend on where you are located. I don't recall seeing any case in the federal circuit (the Second Circuit) that covers Connecticut on this issue - perhaps the editors in that circuit could help us out. In that case, what you do should depend on whether you want to be the test case. In addition, it's unclear whether and to what extent the Department of Labor under President Bush will push this issue, or even if enforcement will change.

    Please feel free to call me at (401)454-2000 if you'd like to discuss this in greater detail.

    Douglas B. Neu
    Editor, Rhode Island Employment Law Letter
    Powers, Kinder & Keeney, Inc.

  • Remember that the employee must work a minimum number of hours in the past 12 months to be eligible. So this employee may not be eligible for FMLA now. I would check the regulations on the Department of Labor Website,

    Good Luck!

  • It is the employers responsibility to inquire about the leave and to extend the FMLA leave. It is not the employees place to inform the employer if it is FMLA or not. The employer must supply the FMLA forms for the employees doctor to fill out and return it to the employer. The employer then determines if the situation fits under the FMLA guide lines.

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