For many reasons, a company (with at least 50 employees) may forget, or simply neglect to provide an eligible employee with the proper FMLA paperwork before or during their leave of absence.  If this happens, does the employer need to offer the affected employee with a new 12 weeks of FMLA leave, re-sent the original notices but late, or can the employer retroactively designate an absence as FMLA leave?

Good news, the Department of Labor regulations provide some direction to those employers in the text of the regulations (29 CFR Section 825.301(d) and (e)).  If an employer does not timely designate FMLA leave, the employer may retroactively designate the absence as FMLA leave if the employer provides appropriate notice to the employee and the retroactive designation does not cause harm or injury to the employee.

For example, if an employer that was put on notice that an employee needed FMLA leave
failed to designate the leave properly, but the employee’s own serious health condition
prevented him or her from returning to work during that time period regardless of the
designation, an employee may not be able to show that the employee suffered harm as
a result of the employer’s actions. However, if an employee took leave to provide care
for a son or daughter with a serious health condition believing it would not count toward
his or her FMLA entitlement, and the employee planned to later use that FMLA leave to
provide care for a spouse who would need assistance when recovering from surgery
planned for a later date, the employee may be able to show that harm has occurred as
a result of the employer’s failure to designate properly. The employee might establish
this by showing that he or she would have arranged for an alternative caregiver for the
seriously ill son or daughter if the leave had been designated timely.  Review the regulation section. 

If an employer fails to timely designate FMLA leave and that failure causes the employee to suffer harm, the employer may be liable for damages or be required to take other remedial actions.  In those cases, the employer may be required to provide an additional 12 weeks of leave, reactivate health benefits, etc… based on the circumstances. Make sure that your company also has the most recent FMLA poster in the workplace and a written Family and Medical Leave policy in its employee handbook (signed by employees).

Consultstu LLC provides fractional HR services to small/mid businesses that lower operational costs, improve business processes and maintain compliance. We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com