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FMLA RETRO?

intermittent fmlaI think the answer is no, but let me poll the experts. We had an employee take off about 15 days last month. I tried to get her to submit the request for FMLA but she never did and her boss kind of let it slide. She took another three days off last week (After a lot of research, I now know that we can initiate the leave; which is my current plan) however can we say those 15 days last month will also count towards the leave?

She had a serious medical condition that we thought was over, which is why we really didn't push it last month. The three days taken last week are new symptoms to this condition, so it's all related. We want to protect ourselves and her going forward.

Answers

Sara Voight
Title: Controller
Company: Critical Signal Technologies, Inc
(Controller, Critical Signal Technologies, Inc) |

I am not an expert on this topic, but I think there are some guidelines you have to follow:
1) The size of your company will dictate if you are required to offer FMLA. If you are small enough, then FMLA is not required.
2) I think most employee handbooks state that you need to request in advance or as soon as you know time is needed. In this case, there might be an argument that the employee didn't know this would be ongoing and require additional time off. My interpretation on this would be that with the current knowledge of the condition qualifying her for FMLA, you can count the original days.
3) Understanding people's reluctance to submit a request (could there be a fear that it would hurt her long time chances of employment?) and management's poor follow up, you should look to implement a formal process for anyone who takes off more than a few days for illness or family emergency. This would cover you as the employer and make sure the employee understands their rights.

I, like you, am curious as to what others with more expertise in this area have to say.

Topic Expert
Christie Jahn
Title: CFO
Company: Prime Investments & Development
(CFO, Prime Investments & Development) |

If you have over 50 employees FMLA applies. The law also states a serious medical condition can be designated after three consecutive days of leave. We have modified our policy manual to incorporate all of this; I still can't seem to find anything about back dating the leave.

I used to handle FMLA for a school district years ago - but it was always cut and dry. I never had a case like this before.

Topic Expert
Malak Kazan
Title: VP, Special Projects
Company: ERI Economic Research Institute
(VP, Special Projects, ERI Economic Research Institute) |

With an employee's personal health, it is difficult for the individual to prioritize these type of matters (administrative) when in the midst of treatment or diagnosis. The FMLA regulations allow for this. Here is an excerpt of the reg which would allow for back dating noting the term "practicable" and the information reported in the certification.

Employee should give 30 days notice or if 30 days notice is not possible - as soon as practicable. In situations when employee is not able to complete FMLA certification prior to commencement of FMLA leave (employer must allow at least 15 business days to submit the initial certification), to determine the certified leave period. Certification Part A: Medical Facts requires identification of the - "approximate date condition commenced", "probable duration of condition", "date(s) you treated patient for condition" and Part B: Amount of Leave Needed - "estimate the beginning and ending dates for the period of incapacity". If the doctor certifies treating the patient for this condition (especially on previous occasions) and the period of incapacity coincides with the requested leave period, you are fine backdating the leave.

Topic Expert
Patrick Dunne
Title: Chief Financial Officer
Company: Milk Source
(Chief Financial Officer, Milk Source) |

We had a similar situation to this. We applied it retroactively and the employee was upset. A relatively new supervisor didn't understand the requirements and we ended up paying the price. It can be done retroactively, but explain it very clearly to the employee.

Anonymous User
Title: CFO
Company: Local Government Agency
(CFO, Local Government Agency) |

@Patrick:

What was that price might I ask?

Topic Expert
Christie Jahn
Title: CFO
Company: Prime Investments & Development
(CFO, Prime Investments & Development) |

Thanks so much for the feedback. Very helpful!

Topic Expert
Christie Jahn
Title: CFO
Company: Prime Investments & Development
(CFO, Prime Investments & Development) |

One more question: Does anyone know if she is now out for the flu, is can that still qualify as counted towards her leave? She is taking an intermittent leave.

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