FMLA—The Tricky Issue of Retroactive Designation—3 Scenarios

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 the 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., presurgery 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.

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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 a 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.

FMLA, a never-ending challenge. In HR, if it’s not one thing, it’s another. Like health- care reform, overtime hassles, ADA accommodation, and then on top of that, whatever the agencies and courts throw in your way.

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