Backdating FMLA leave – may it be done?

You just learned that Jane employee has been out of work for the last three weeks due to an injury. Jane’s supervisor did not tell you about the absence; you noticed it on Jane’s time sheet. What do you do? May you go back and designate that time off as leave under the federal Family and Medical Leave Act (FMLA)?

Possibly. The FMLA regulations allow you to retroactively designate an absence as FMLA leave if you (as the employer) failed to timely designate it as such — as long as the retroactive designation does not cause harm or injury to the employee.

If Jane’s own serious health condition prevented her from returning to work during that time period regardless of the designation, she might not be able to show that she suffered harm as a result of your actions.

If, however, Jane took leave to care for a child with a serious health condition believing it would not count toward her FMLA entitlement, and she planned to later use that FMLA leave to provide care for her spouse who would need assistance when recovering from surgery planned for a later date, Jane might be able to show that harm has occurred as a result of your failure to designate properly. Jane might establish this by showing that she would have arranged for an alternative caregiver for the child if the leave had been designated timely.

In all cases where leave would qualify for FMLA protections, you and an employee can mutually agree that leave be retroactively designated as FMLA leave.

Once an employee puts you — or anyone acting on behalf of the employer, including supervisors — on notice of the need for leave, you have five business days to give the employee an eligibility/rights and responsibilities notice.

If you don’t learn of a potential FMLA absence in time, you may retroactively designate it as FMLA leave, but you must promptly give the employee an eligibility/rights and responsibilities notice. You may ask for a certification supporting the need for leave, and once you have it, you generally have five business days to give the employee a designation notice.

Don’t delay in giving the employee those notices.

With retroactive designation, you would count all the leave the employee took for an FMLA-qualifying reason as FMLA leave.

To help avoid this situation, be sure to train your supervisors on how to recognize a notice of the need for leave!

Key to remember: Employers may retroactively designate an absence as FMLA leave in many situations, but they need to act quickly.