When to Retroactively Designate FMLA Leave

What happens if a manager forgets to inform HR that an employee has absences that could be FMLA-qualifying? Can those absences still be counted against the employee's 12-week FMLA allotment for the year? What about when an employee has an emergency and must take leave immediately but was unable to request it? Can that count as FMLA leave from the moment it starts, or must the FMLA tracking begin once the paperwork is completed?

These are common situations that relate to one general question: When can you retroactively designate an absence as FMLA leave?

Retroactive designation can even be beneficial for both the employee and employer in some situations, such as when the previous absence was counted against the attendance policy and now could be removed from that (employee benefit). And the FMLA clock has now started ticking at the right time (employer benefit).

Whether or not this is a viable option is very fact-specific. Here are 3 scenarios to guide you in your process.

Retroactive FMLA Leave Designation Scenarios

Scenario 1: The employee has an unexpected need for leave, such as a car accident, or the employee's parent has a heart attack.

The result in this scenario is often that the employee is already on leave before requesting it. Yet it takes time to process the FMLA paperwork. This is the easiest scenario in which a retroactive designation is appropriate, and this comes up often without much problem. The employer can easily designate all of this leave as FMLA, starting on first day of leave. This is okay, even though the paperwork could take days or even weeks to finalize.

"In that situation, it's pretty easily solved. You just go ahead and process the paperwork. However long it takes, that's how long it takes. And then you designate all of their leave as FMLA, starting on the very first day you took leave." Julie Athey explained in a recent BLR webinar.

Scenario 2: The employee missed work a number of times before requesting FMLA leave.

This could easily happen where an employee has regular absences that are related to the FMLA-qualifying reason, but does not inform the employer about the reason for the absence. Some examples might be: doctor's visits to prepare for surgery, medical issues during pregnancy, etc.

In this situation, often the employer has no idea that the absence might be FMLA qualifying until later—when FMLA is actually requested for the bigger, related event, such as for surgery. In fact, this situation is often discovered on the FMLA medical certification.

In this situation, how far back can you go in tracking the FMLA leave? Can you include the related absences? Unfortunately there's not a simple answer. It will have to be a fact-specific solution. The conservative approach is to track FMLA absences only back to the date of notice.

Another alternative is to count the absences prior to the notice if those absences are listed on the medical certification. However, this will be a judgment call.

Scenario 3: The employee has already missed a lot of work before word gets to HR.

This often happens when a supervisor or manager fails to advise HR that an employee's absences may qualify as FMLA. Often the manager should have known, and is frustrated with the absences before even coming to HR.

When it comes to retroactive designation, this is the trickiest situation, explains Athey, and there's not an easy solution. The conservative approach here is to start track starting from date you provide them with an Eligibility Notice. They've already been gone a lot, and nothing has been said about FMLA, so it will be a tough sell to say that they have to "lose" all those back dates of FMLA.

But if they're gaining back absences that had been counted against your attendance policy (which they may or may not, depending on your policy about running leave concurrently), then they may be more amenable to the idea.

It doesn't have to be all-or-nothing. There may be other reasonable dates that could be counted, even if not all of them can—it depends on the facts at hand. You could also consider asking the employee to agree to retroactive designation of leave for some or all of the absences. It may be to their benefit, especially if they were running into trouble under the attendance policy.

Consult an attorney if you're faced with this situation.

For more information on retroactive FMLA leave designation, order the webinar recording of "Leave Tracking for HR Pros: In-the-Trench Strategies for Conquering Complex FMLA Challenges." To register for a future webinar, visit http://store.blr.com/events/webinars.

Attorney Julie K. Athey is an HR consultant with the Robert E. Miller Group in Kansas City, Missouri. She assists clients in developing customized FMLA policies and procedures as well as providing in-depth compliance assistance and advice.