A Department Head (an Elected Constitutional Officer) responsible for designating FMLA leave did not mention or offer FMLA rights to an employee who was caring for a spouse with a serious illness in Dec 2009 – January 2010. HR has just learned about it and the employee wants to utilize his/her FMLA rights. The certification was been completed recently. Since the employee has been back at work and it is beyond the 2 days, can this leave be retroactively designated as FMLA in the state of Va?
Assuming that you are covered by the federal FMLA law, this leave probably cannot be designated as FMLA retroactively. There is no 2-day limit for designating FMLA under the current regulations.
Under the FMLA regulations introduced in early 2009, an employer can sometimes retroactively designate FMLA. However, the employer can take this measure only when there is no harm or injury to the employee from such an action. In this case, the employee could argue that if she had known the time she took off to care for her spouse in December 2009 to January 2010 was FMLA, she would have made other arrangements. (If the employee had taken that time off for her own illness, when she was unable to work, then the situation would be different.)
The bottom line is no, you cannot retroactively designate the December 2009 to January 2010 leave as FMLA.
Read more about this at: http://www.dol.gov/dol/allcfr/title_29/Part_825/29CFR825.301.htm
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