Human Resource Blog

Retroactive FMLA

If an employee left on April 16th for emergency surgery and due to complications and several surgeries later is still out of work on September 15th (nearly 5 months). Never requested FMLA leave what is the employers responsibility in regard to FMLA notification beyond posting it in the workplace and citing it in the handbook? Also what is required in terms of continuing to hold the position open or not. It is a non-salaried position and covering it has put a real strain on the rest of the department. the manager of the department has made little to no effort to contact the employee and discuss their plans for returning to work nor has the manager expressed a need until recently that the position needs to be filled now.

Frankly, somebody dropped the ball here — and we will leave it up to you to determine if it was the supervisor or the HR department. This employee should have been offered FMLA leave within the first two weeks of being absent — for your protection, not the employees.

The best practice in the HR field is for the employer to offer FMLA leave to any employee with an absence of more than a week (assuming that the employee is otherwise qualified for the leave.) Normally the employer gives the worker FMLA forms to complete, to request leave. If this employee received the forms and refused to fill them out, then he or she could legitimately be terminated (perhaps.) However, if the employee was never given FMLA forms, then that is a different story. In that case, you probably cannot terminate the employee until he or she goes on FMLA leave and uses up the 12 weeks.

By allowing this employee to take 5 months of non-FMLA leave, you have set a dangerous precedent. Legally, you will likely have to honor the same type of leave for other employees in the future. For example, a woman on pregnancy disability could take 5 months of unpaid leave before applying for FMLA to stay home with her baby for 3 months.

An employer cannot make FMLA leave retroactive. An employee can, in some cases, request that FMLA be made retroactive, as long as the request is made within 2 business days of returning to work. However, there is no provision for the employer to invoke this right.

Contact the US Department of Labor regarding your specific situation, but it may very well be that you will have to begin FMLA leave now. That means if the employee returns to work after 12 weeks, you must give the employee their job back. In the meantime, you certainly can hire a temporary employee to fill in, or contact a temp service for help.

For your companys protection, once this problem is addressed, issue a new policy on short term leave. And, train all supervisors on the proper procedures for handling FMLA leave.