Human Resource Blog

Back-dating FMLA without treatment by a medical provider

An employee’s last day at work was 10/10/08. She was first treated by a medical provider on 11/15/08. On 12/23/08, FMLA paperwork was completed stating she became unable to work beginning 10/11/08. The employee remains out of work to date. Is it appropriate for the employer to certify her FMLA beginning 10/11/08?

This is a grey area, and may very well require a lawsuit to resolve. At a minimum, we would like to see an official opinion by the U.S. Department of Labor, which enforces the FMLA or federal Family and Medical Leave Act. We certainly cannot answer your question without a lot more detail than this forum permits.

The U.S. Department of Labor introduced updated FMLA regulations on January 16, 2009. However, it appears that this situation would be covered under the old regulations.

This question speaks to the definition of a serious health condition under FMLA. Some conditions, especially pregnancy, are always considered a serious health condition. However, for other conditions, the FMLA regulations require that the employee either a) be unable to work for a few days AND require at least one appointment with a health-care provider or b) Require treatment by a health care provider at least 2 or 3 times. It is not clear whether this employee meets those guidelines or not. Could an employee claim FMLA if they were out of work for 3 months and did not see a healthcare provider until the last day? It would probably take the Supreme Court to decide.

However, we can probably save you some trouble. If the employee went on 12 weeks of FMLA leave on 10/10/08, she would be due back at work on 1/2/09. If the employee did not report to work that day,(or on her next scheduled day if 1/2/09 was a non-work day) she can be terminated for taking more time off than FMLA permits. (If your company calculates FMLA by the calendar year for all employees, you may have to return the employee to her job. But that is very, very unusual.)

Either way, please contact the U.S. Department of Labor to ascertain if this employee is even entitled to FMLA leave, and which regulations will apply. And thanks for a really interesting question!