Employee already out can we designate as FMLA?

shereem

Everything I read talks about employees requesting FMLA.. what about when they don't request it.
We have an employee who has been with us years she has been out for about 2 weeks (she has a mental illness that comes up when she does not take her medication or get proper rest - but she has never used FMLA). She has been calling in saying I am coming back tomorrow or Monday.... so far she is still out...... she has been seeing her doctors.
I know she qualfies for FMLA due to out more than 3 consecutive days and under a regime of doctor care.
But we are just formaly writing her today. Can we go back to August 13th and designate her time out as FMLA or can we only go forward? We require they exhaust paid time concurrent with FMLA and she has about a week left before she does that so currently she is still on paid time.... our letter will address this as well.
Thank you.

Brad Forrister

Hmm. What stuff have you been reading? It's the employer's responsibility to designate leave as FMLA. It's in the employer's interest, generally, to designate it as soon as possible, to start the 12 weeks running. You can make the designation as soon as you are aware of the facts justifying FMLA. But you cannot go back retroactively.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Envoy

Righto. You can't wind the clock backwards. But it behooves ER's to put EE's on FMLA notice and start ASAP when appropriate, i.e. workers' comp or disability ensues. Otherwise, ER's FMLA obligation is on top of whatever is taken.

Elsie Tai
GCG Risk Management, Inc.

HRQ

At an FMLA seminar, the trainer said something like "there are no magic words the employee must use to request FMLA - you must be familiar enough with it to know when FMLA may apply"

In most cases, either I notice an employee stopped receiving paychecks and ask if they termed only to find out they are off for medical reasons, or the supervisor tells me an employee needs to file an STD claim. I generally start the FML process after asking a few questions of the supervisor.

This is an area I've covered many times with our supervisors (notifying me immediately of medical leaves) and will continue to retrain them at least annually.

AprilShowers

Here's my senario:
Day 1 Employee had surgery.
Employee was only supposed to be out for 2 days.
Employee called off day 3
came in day 4,5
went home halfway through day 6
came in day 7, 8, half of day 9
off day 10 went to doctor.
Complications from surgery according to doctor employee will be off for 2 more weeks.

Question:
Can we designate FMLA starting the day of the surgery since HR just became aware of the situation when the Doctor said "2 WEEKS" and all absensces have been due to the surgery?

Thanks for your help!

KP68

Here's my two cents worth on retroactively designating FML: While we, as employers, are obviously strongly encouraged (or scared into) NOT retroactively designating the time as FML, I have read in several summaries of Ragsdale V. Wolverine that the employee needs to essentially show that he/she would not have taken the leave, had he or she known it was going to be docked from the 12 week allotment. I think this is applies specifically in situations where we are not given 30 days notice (unplanned or emergency situations). Would the fact that we did not tell them immediately have changed whether or not the employee took the time off? Probably not. We (my company) haven't gone retro on FML designation, but I think that there is a tiny bit of hope for employers in this situation. Although it's still risky.

Rockie

I just had a case where the employee had day surgery, came back too soon and then had to be out three days. She did not "want" FMLA,but she got it anyway. I simply sent her a letter stating this would be counted towards her FMLA allotment. Her physician had already given her a return to work excuse, so I knew that she had medical treatment. In my opinion, it doesn't matter if she refuses to have the paperwork completed, I do have the doctor's certification that this was medical treatment and how long she was out.

I have had several employees who did not want to use FMLA. Sometimes it's because they don't want anyone to know the reason for their illness, surgery, etc. Other times, they somehow feel they are going to be "penalized" for taking FMLA. When I explain to them that it is a protection for them, they seem to accept it better. I also explain to them that I don't need to know details of their illness...I only need to have enough information to ascertain if it is a qualifying event. I also have a confidential fax in my office and keep these items under lock and key in my office. I can't control what they tell other people, but I can control who has assess to the information.