Intermittant FMLA

One of our employees has a designated FMLA to assist her father who has cancer. After reviewing her sick time for 2010, she came to me saying she forgot to note "FMLA" on her timesheet for some of her sick absences. I told her we couldn't go back to designate FMLA after the fact. Any other thoughts?


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  • You need to look at 29 C.F.R. 825.301(d). Employers may designate leave retroactively with the employee's mutual agreement. I would argue, however, that you are not required to do so because the employee did not provide adequate notice at the time she took the leave. You need to work through the pros and cons of whether to designate the absences as FMLA leave (assuming the employee agrees) or count them against her under your attendance policy.

  • Thanks so much for your response! Since we have many employees who are under intermittant FMLA, we have told her that if she does not designate on her timesheet (which is already after the fact), she cannot go back and change it. It was felt that allowing her and others to do so would open us up to further abuse.
  • Prairie:

    I'm curious. Who does this employee call when they are not coming in? Usually it is the supervisor. Isn't the employee telling the supervisor (or whomever) at the time of calling in that it is FMLA? Shouldn't that person be involved in your FMLA procedures? Shouldn't they be letting HR know when they get the call?
  • That's easier said than done. She may or may not have indicated that it was an FMLA day, but our departments tend to function as independent entities until they feel they need my help. No one tells me anything, despite my pleas. At this point, I would hesitate to take anyone's word that time off over the last year should have been charged to FMLA. Thanks so much for your input.
  • There is a standard that "if the company knew or should have known" that the leave might qualify for FMLA that they can be held to designate it as such even if the employee does not specifically ask for it. You do have some pro-active responsibility. If her supervisor knew of her reasons for being absent, you could be held to this.

    I do think it is essential for the supervisors to understand they need to communicate with HR about any issues that could involve FMLA, disability or other HR issues. I periodically conduct in-house training classes for our supervisors on these things.

    We also have a specific PTO mailbox which employees are required to call if they are going to be absent from work. They may call their supervisor also, but they must call the PTO line first. These messages are picked up by HR. I use it not only to monitor attendance, but also send the information to our safety officer, so he can do up our emergency evacuation list every day.
  • You have some great points - thanks! I plan to address this at our next Department Head meeting!
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