Benefits and Compensation

Retroactive FMLA Designation—3 Scenarios Cut Through the Fog

When you find out about a possible FMLA qualifying leave after it has started, how far back can you go to retroactively designate the leave? Athey, an attorney with The Robert E. Miller Group in Kansas City, Missouri, was joined by a colleague, consultant Kristi McKinzey, in a recent webinar sponsored by BLR/HRHero. Athey offers three retroactive designation scenarios:

Scenario # 1: Unexpected

In these situations (e.g., accident, parent has a heart attack), the employee is usually already on leave before requesting it. And, of course, it takes time to process FMLA paperwork.

Nevertheless, this problem is easily solved: Designate all leave as FMLA, starting on first day of leave, says Athey.

Scenario # 2: Missed Work Before Request

In this scenario, an employee missed work a number of times before requesting leave (e.g., pre‐surgery visits, pregnancy checkups, other similar situations).

This is a fact‐specific solution, says Athey. The conservative approach is to track only back to the date of notice. Another alternative is to count all absences that are listed on the medical certification. Athey recommends that employers don’t track before notice.


Looking for practical help with PTO? Start with Perfecting Your PTO Policy: Know Your Obligations When Administering Leave, an interactive webcast on December 16, 2013, all about managing PTO. Learn More


Scenario # 3: Missed Work and Facing Discipline

Here, the employee has already missed a lot of work before word gets to HR. For example, an employee who works at a satellite location is repeatedly absent due to neck pain. He has surgery in December and again in February. His manager finally comes to HR “fed up” with the constant absences and is ready to fire Dave. This is the first HR has heard of it.

This is not an easy solution; you haven’t said anything thus far, now you suddenly hit the employee with a significant amount of leave used up. The conservative approach is to track starting from the date of the Eligibility Notice, says Athey.

There may be other reasonable dates to start counting FMLA, depending on the facts. Or, you may consider asking the employee to agree to retroactive designation of leave.

Light Duty Assignments

Here’s how to look at light duty under the FMLA, says Athey. An employee who returns to work on a reduced schedule is still on FMLA leave, not light duty. An employee who works a full schedule with restrictions is on light duty, not FMLA leave. But, that employee retains FMLA reinstatement rights when light duty ends.

Why FMLA Training is Crucial

Training for both managers and employees is very important for making FMLA go smoothly, says Athey.

For Managers

Managers need to be your eyes and ears. They need to be able to spot FMLA even when an employee doesn’t specifically request it. And they also need to know what to do (usually, call HR) and to avoid any statements or actions that could be perceived as retaliatory.

For Employees

It’s important to train employees on the basics of FMLA so they don’t get surprised, for example, when they discover:

  • Leave is unpaid.
  • Their situation doesn’t qualify.
  • They have responsibilities when they take leave.
  • They can be required to use vacation or PTO along with FMLA.

More and more employers are opting to replace their sick and vacation leave banks with PTO (paid time off) banks. There are plenty of upsides—employees are more satisfied, and they tend to take fewer unplanned leaves of absence. But is it really that simple?

Well, it can be—if your PTO policy is designed and implemented correctly. Unfortunately, there are tricky factors you must consider, such as wage and hour laws, workers’ comp regulations, the FMLA, and the ADA. The complexity of these laws —and their relationship with PTO—make it crucial for you to know where your policies are potentially dangerous.

Will Your a Lawsuit Suit Cost You $10.5 Million?

You’ll probably never settle an employee lawsuit over use-it-or-lose-it paid time off for $10.5 million, like courier DHL did. Or pay $11 million, like Kelly Services, over shorted vacation pay. Such settlements make AutoNation’s $2.35 million PTO settlement with employees seem cheap by comparison. But make no mistake—PTO administration errors can lead to huge headaches for any employer.

Fortunately, there’s timely help in the form of BLR’s December 16 webcast—Perfecting Your PTO Policy: Know Your Obligations When Administering Leave. In just 60 minutes, you’ll learn everything you need to know about managing a PTO program.

Register today for this interactive webinar, and learn how to effectively manage paid time off for your organization.

Find out more


Learn how to effectively manage paid time off for your organization. Join us for an interactive webcast on Perfecting Your PTO Policy: Know Your Obligations When Administering Leave. December 16. Earn 1.5 hours in HRCI Recertification Credit. Register Now


By participating in this interactive webcast, you’ll learn:

  • What an effective, legal PTO policy looks like
  • How to account for time off that’s not measured in nice, neat days
  • The kinds of notice you need to give to exempt workers before forcing them to use accrued PTO during furloughs
  • What paid vacation or PTO can mean when it comes to overtime pay for nonexempt employees
  • Whether or not a “use it or lose it” policy is legal under federal law
  • The right way, and the wrong way, to administer PTO days that carry over from year to year
  • Tactics for combining PTO leave with protected leave under the Family and Medical Leave Act
  • The top things you need to know before changing PTO accrual rates
  • Smart moves to make when cashing out unused time
  • And more!

Register now for this event risk-free.

Monday, December 16, 2013
1:30 p.m. to 3:00 p.m. (Eastern)
12:30 p.m. to 2:00 p.m. (Central)
11:30 p.m. to 1:00 p.m. (Mountain)
10:30 a.m. to 12:00 p.m. (Pacific)

Approved for Recertification Credit

This program has been approved for 1.5 recertification credit hours through the Human Resource Certification Institute (HRCI).

Join us on December 16—you’ll get the in-depth Perfecting Your PTO Policy: Know Your Obligations When Administering Leave webcast, and you’ll get all of your particular questions answered by our experts.

Find out more

Train Your Entire Staff

As with all BLR/HRhero webcasts:

  • Train all the staff you can fit around a conference phone.
  • You can get your (and their) specific phoned-in or emailed questions answered in Q&A sessions that follow each segment of the presentation.

Find out more

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