FMLA Designation

graciekaye

I have been trying to find out what happens if an employer forgets to notify an employee that the leave they are on is going to run concurrent with their FML time? Can that employer send out the letter 8 weeks into the leave and indicate that the FML time was effective on ......... That is where is get lost, how far back can an employer go in this situation?

graciekaye

I was really hoping to get some guidance on this question. I am wondering if an employer can inform an employee that she is on FML 8 weeks into her leave? Or, does the employer have to inform her within that first two days?

Deeter

You cannot retroactively designate FMLA - but you can designate going forward. Be sure to check your eligibility requirements....

See 825.208 (c) -

However, if you did not learn of the need for leave.... refer to 825.208 (d).

Hope this helps.

Don D

Notwithstanding 825, recent court rulings have held that it IS appropriate to backdate in some instances. The ruling cited the logic that the act did not intend for an ee to have more than 12 weeks and prohibiting the employer from going back to capture already taken time off results in the ee having more than 12 weeks, in some cases, i.e. more than the act intended. As I recall, the case involved an employee who claimed he had 12 weeks coming 'from this day forward' even though he had been off for weeks. The employer's position was that it should be allowed to retro the FMLA to the date the lengthy absence began, even though the company had not so advised the ee. The employer prevailed. I can't cite the case, but somebody on here will.

Rockie

Gracie: The case everyone is referring to is Ragsdale vs. Wolverine Worldwide, Inc. where the court overturned the DOL notification requirement adopted in 1995. The employee (Ragsdale) took 7 months of unpaid sick leave as allowed under a collective bargaining contract to treat her Hodgkins' disease. The company never notified her that the time off was the count as FMLA leave. After requesting additional time off and being fired, she fired the company claiming the time she took off should not be counted as FMLA leave because of the company's failure to make the required notification.

The court held that although the lack of advance notice does not entitle employee to mroe than 12 weeks of FMLA leave employers should make a good faith effort to provide advance notice and have a clear and well communicated policy about what types of leave constitute FMLA.

Does this mean that employers do not have to notify their employees about FMLA leave. No. Simply stated, employers should continue to notify employees of their FMLA rights as soon as possible after notification of leave; however, if, due to an administrative oversight the employee does not get an official notice, then the leave would still count as FMLA. Having well communicated and published avenues such as employee handbook that outlines what constitutes FMLA is crucial in these type matters.

I would say you are safe in going back and designating the leave as FMLA in this instance,but I would make every effort in each case to notify employees as soon as possible.

Hope this helps some. This is a very complicated piece of legislation.

Don D

We had this situation just yesterday where we discovered one of our many out on FMLA had slipped through the cracks, had not returned paperwork and we didn't catch it. She's also on comp. Our attorney again referencing Ragsdale v Wolverine said it is safe to retro as long as it was an omission and not due to any sort of malicious reason such as trying to entrap and terminate by post-designating. Today we wrote her certified mail advising her FMLA ran concurrent and has been exhausted, but that she continues protected by the union contract for the remainder of 12 months. At least she can't use FMLA again for awhile.

graciekaye

Thanks, Don. I appreciate the response. I have to do figure out how to handle this because even though the employee I was originally asking about has returned, she is having subsequent sugery related to the first event and it is going to be within 12 months of the first event. I will have to be sure that I can inform her that the first event was under FMLA so that she is not getting a tremendous amount of time off under FMLA.

Don D

The attorney went further to say in addition that he knows that our posters are displayed and written procedures and forms are in place and the only defense we would need is to show those things along with an otherwise clean FMLA administration and it will pass a backdating test.