May employers backdate FMLA leave?
Every now and then, employers ask if they can backdate an absence as leave under the federal Family and Medical Leave Act (FMLA). Perhaps the leave administrator was caught unawares that an employee had been on leave for a while and missed the deadlines to give the employee an eligibility/rights and responsibilities notice and a designation notice.
The FMLA regulations give employers an option to retroactively designate an absence as FMLA leave when they otherwise fail to designate it on time. Employers do, however, have some considerations.
Employers may retroactively designate an absence as FMLA leave, if doing so does not cause harm or injury to the employee, and employers give employees their notices.
What might that harm or injury look like?
If, for example, Joe Employee put his employer on notice of the need for leave for his own serious health condition. The employer, however, failed to designate the leave properly. If Joe’s condition prevented him from returning to work regardless of the designation, he might not be able to show that he suffered harm due to the employer’s actions.
If, on the other hand, Joe took leave to care for Elsie, his daughter with a serious health condition, believing it would not count toward his 12 weeks of FMLA leave because it was not designated timely. Joe, therefore, planned to later use his FMLA leave to care for his wife, who would need help when recovery from surgery planned for a later date. He now might be able to show he suffered harm due to the employer’s failure to designate his first absence properly. He might be able to show that he would have arranged for an alternative caregiver for Elsie if the employer had designated the leave timely.
If an employer's failure to timely designate leave causes the employee to suffer harm, it may constitute an interference with, restraint of, or denial of the exercise of an employee's FMLA rights.
Employers could be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.
Employers and employees may agree
In all cases where leave would qualify for FMLA protections, employers and employees may mutually agree that leave be retroactively designated as FMLA leave.
Employers have five business days
Once an employee puts an employer on notice of the need for leave, the employer has five business days to give the employee an eligibility/rights and responsibilities notice.
Once an employer has enough information to determine whether the absence qualifies for FMLA protections (such as from a certification), the employer has five business days to give the employee a designation notice.
Key to remember: Employers may retroactively designate an absence as FMLA leave, but only if it does not harm the employee.
