FMLA Designation

NYGiants · June 2007

If I fail to designate an employee's leave as FMLA eligible, can I still count the leave she took against her 12 weeks of FMLA leave? The employee has been absent due to a medical condition, which has developed into something very serious. I believe she is eligible for FMLA leave- and has been for about 2 weeks. Can I count those 2 weeks against her FMLA leave now, and tell her she is FMLA eligible retroactively?

thanks

KLeede · June 2007

I think if it's a serious condition that qualifies her for FMLA leave, you have to notify her in writing that you're going to designate it as FMLA. I think if she's still out on leave you can tell her it's retroactive back to when it became a qualifying condition, but you have to tell her in writing.

countrygirl · June 2007

THis is kind of a confusing thing because there seems to be some disagreement between the Department of Labor and the courts. We dealt with this issue, and i remember how confused I was.

Anyway, you can't designate leave retroactively unless: (1) the employee does not inform the employer of her reason for leave; or (2) the employer has provisionally designated the leave as FMLA eligible and is waiting for medical certification. It does not appear that either of these exceptions applies based upon the facts provided in your question.

According to the DOL, if an employer fails to designate leave as FMLA and to notify the employee, any leave taken can't be counted retroactively. But, the Supreme Court invalidated this reg in Ragsdale v. Wolverine Worldwide, Inc., 122 S.Ct. 1155 (2002).

So, basically, we're all left with a whole lot of uncertainly as to what the outcome will be if we retroactively designate FMLA leave. I would get your lawyer on the phone and see what he or she thinks.

Hope this helps!

BarbieW · June 2007

Based on the information in the original post here, it isn't clear if the employee was initially qualified for FMLA leave. You said she went out for a medical condition that turned into something more serious. When was the company aware that her condition was a serious health condition under the FMLA? Did it ask for medical certification? Did it send her any notice of her right to FMLA leave? I agree with countrygirl that if you want to designate the time retroactively, it might be a good idea to have your lawyer review the entire file and your policies. Better safe than sorry.

NYGiants · June 2007

I have (now) asked the employee for medical certification. I believe when it comes back, it will reflect that she has a serious health condition warranting FMLA leave. So, my question is: can I count the weeks she already took for "sick" leave against her 12 week FMLA allotment?

HRgsf · June 2007

This is very confusing! One part of the DOL's regs seems to say you can retroactively designate sick leave as FMLA if a person takes sick leave for one reason (e.g. bronchitis) and it turns into a serious health condition (e.g. bronchial pneumonia). But then another part says something about a "preliminary designation" until you get medical certification:

If the employer knows the reason for the leave but has not
been able to confirm that the leave qualifies under FMLA, or where the employer
has requested medical certification which has not yet been received or the
parties are in the process of obtaining a second or third medical opinion, the employer
should make a preliminary designation, and so notify the employee, at the time
leave begins, or as soon as the reason for the leave becomes known. Upon
receipt of the requisite information from the employee or of the medical
certification which confirms the leave is for an FMLA reason, the preliminary designation
becomes final. If the medical certifications fail to confirm that the reason
for the absence was an FMLA reason, the employer must withdraw the designation
(with written notice to the employee).

Good luck! This one's not easy to sort out!

FMLA Designation

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