When it comes to FMLA leave tracking, how far back can an employer go before the official FMLA designation? There are several scenarios where it can easily occur that an employee has taken qualifying leave that has not been designated as FMLA leave. Some of these scenarios have simple answers, but others aren’t so simple. Let’s take a look at some of the common situations employers encounter:
Scenario 1: The employee has an unexpected need for FMLA leave, such as a car accident, or family medical emergency. In this case, the result is often that the employee is already on leave before even requesting it. Even if the situation is known to be FMLA-qualifying, it still takes time to process the FMLA paperwork.
Thankfully, this scenario is easily solved: the employer can designate all leave as FMLA, starting on the first day of leave.
Scenario 2: The employee missed work a number of times before requesting leave. This could happen if the employee simply takes normal absences for appointments prior to a surgery, during pregnancy, or in other similar situations. The employer usually discovers that previous absences might have been FMLA-qualifying when they receive the FMLA medical certification for the longer leave request.
This scenario requires a fact-specific solution, so there’s not a single answer here. The conservative approach is to track FMLA leave only back to the date of notice. Be very careful, however, if such non-designation of FMLA leave would put the employee in jeopardy under the regular attendance policy.
Scenario 3: The employee has already missed a lot of work before word gets to HR, and the manager did not track the FMLA absences.
This scenario does not have an easy solution, unfortunately. The most conservative approach is to track starting from date that the employer provided the employee their FMLA Eligibility Notice. However, there may be other reasonable dates that could be counted as FMLA leave; it depends on the facts of the situation. Consider asking the employee to agree to the retroactive designation of leave. This type of scenario should be evaluated on a case-by-case basis, weighing fairness and consistency.
Retroactive FMLA leave tracking can be a double-edged sword. On one side, employers must ensure that employees receive all of the FMLA leave to which they are entitled, and if previous absences weren’t designated as FMLA, a retroactive designation may seem unfair. On the other side, not retroactively designating FMLA leave may leave employers inconsistently applying the rules.
“Employers, understandably, frequently feel that they have to treat everyone exactly the same under the FMLA. And the reason for that is clear: that if you don’t treat everyone exactly the same, that you’re kind of setting yourself up for a potential discrimination lawsuit. However, I tend to recommend that there are certain provisions in an FMLA policy where you can build in some flexibility . . . to allow a little more of a human touch in applying FMLA requirements.” Julie Athey advised in a recent BLR webinar.
For more information on the importance of consistent FMLA leave tracking, 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.