2-day retroactive FMLA designation

jmw5455

Can anyone please clarify the 2-day retroactive FMLA designation rule? I know an employee has 2 days upon their return to work to request the leave be designated as FMLA if it was not done previously, but I also heard that only 2 days of leave can retroactively be designated as FMLA.

The case example would be an employee out on leave for 2 weeks finally produced documentation that the leave qualifies under FMLA. Can the entire leave period be designated as FMLA, or may only the last 2 days of the leave be deemed FMLA?

LindaS

I would go back and designate the entire leave as FMLA as long as the condition for which the employee was out qualifies. I'm not familair with a two day rule but I am familiar with the 15 day rule which allows an employee up to 15 days to provide the necessary documentation to verify the need for FMLA leave so the two weeks would be well within that timeframe (taking the 15 days to be 15 working days, of course).

Hope this helps.

Theresa Gegen TX

The 2 day rule that I know about says that if an employee asks about whether he or she is eligible for FMLA, the employer has 2 days (a reasonable time, which the DOL thinks is 2 days) to report back to the employee. Under this rule, eligibility refers to has the employee worked 12 months and atleast 1250 hours, and are there 50 or more employees in a 75 mile radius. It is not whether the specific medical condition is eligible.

Leave can now be retroactively labled as FMLA, unless doing so would prejudice the employee (For example, if the employee needed a type of surgery that could be done, not immediately, but should be done in the next few months. If knowing that some leave was using up their FMLA, so they would run out if they had surgery on date X, but if they waited until Y, they would be okay, the employer should not retroactively designate). The US Supreme Court struck down the DOL rules on retroactive designation of leave.

When an employee requests leave for an FMLA qualifiying event, the employee has 15 days to get the paperwork in, but the leave is using FMLA from when they started taking it. (This is not retroactive designation). The best thing to do is to tell the employee that you will conditionally designate the leave as FMLA leave from the date they request it, subject to the paperwork coming in. If the paperwork is not returned, the leave will no longer be FMLA leave and the employee will be subject to whatever procedures apply for being absent without leave.

Good Luck!