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Retroactive FMLA Designation

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.

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This entry was posted on Friday, March 5th, 2010 at 2:46 pm and is filed under
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6 Responses to “Retroactive FMLA Designation”

  1. Cat Can Says:

    I was granted FMLA in 11/2009 for intermittent leave until 10/2010 in CT. I re-certified the FMLA in 10/2010 until 5/1/2011. I had further time off for treatments in May 2011 and was not notified of the expiration until 11/2011. I have provided an updated medical certificate from 5/1/11 to 5/1/12, can I get the FMLA coverage retroactive to 5/1/11?

  2. Caitlin Says:

    Hi Cat Can! It is not clear why you would need retroactive coverage. Usually retroactive FMLA is designated for the employers benefit, not to benefit the employee.
    As you may know, FMLA permits an employee to take up to 12 weeks of unpaid, job-protected leave for a serious health condition. If you used 12 weeks of FMLA between 10/10 and 5/11, you would not be eligible for FMLA again until 10/11. FMLA is not 12 weeks for each certification — it is 12 weeks total in a 12-month period for all reasons combined.
    You were on intermittent FMLA from 10/10 to 5/11. If you had an absence after that, for a reason that might have been covered by FMLA, the employer had a legal obligation to notify you, in writing, within 5 days, of your rights under FMLA. Then you would have an additional 15 days to provide the necessary certification. However, if you had already used 12 weeks of FMLA, then you would not be entitled to additional time off, with or without certification.

    If you had FMLA available for your absence in May 2011, and the employer did not inform you in writing that you needed to re-certify, that was a denial of your rights under the federal FMLA law. You could file a complaint with the U.S. Department of Labor at, or with the EEOC at

    Also be aware that the 12-month FMLA period does not necessarily reset with certification. Many employers use a rolling-backward method of tabulating FMLA, which means if you used a lot of FMLA in the summer and fall of 2010, you would have very little time left to use in the first 6 months of 2011.

    This is a complex issue, so feel free to post more details for a more specific answer. Why do you want retroactive FMLA coverage from 5/1/11 to 5/1/12? Was there an absence that was not covered? Are you sure that you had FMLA available? This will help us understand your situation. HTH, and thanks for reading the blogs!~Caitlin

  3. Cat Can Says:

    Thanks Caitlin!
    I did not use anywhere near 12 weeks. My time off consisted of once a week, for four weeks, every six months. That is only 8 days and I used 2 for scans and partial days for maybe six doctor appointments and a couple of sick days after my treatment for the entire year.
    My HR department said I was notified in 10/2010 that my FMLA coverage would expire on 5/1/11 and that was reasonable notification. I submitted time cards with the time off coded as FMLA and HR said it’s my department’s responsibility to correctly approve the time off, but now six months later payroll is kicking back the time cards asking me to change the time off to regular sick time. HR said it is their practice to only retro-active back three months. Thanks for your help!

  4. Caitlin Says:

    Hi Cat Can! Thanks for the info, that helps a lot. It sounds like you used much less than 12 weeks of FMLA, and should still have leave available. The HR department is playing childish games. They should have informed you when a new certification was required, on your first absence after 5/1/11. You would then have two weeks to obtain that certification. (They may know this, which is why they are asking you to change the designation to sick leave, instead of just denying FMLA.) There may also be a conflict between the department head and HR, or between HR and payroll, but it should not affect your FMLA rights.

    Just so you know, at most companies HR tracks FMLA because it is such a complex topic. It sounds like in your case, it slipped through the cracks and now everyone is blaming someone else.

    The employers assertion that you were informed in 11/10 that you would have to recertify in 5/11 is ludicrous. According to them, your FMLA ended on 5/1/11. That means that any subsequent absence should have triggered another FMLA notification, even if it was for the same condition.

    Our recommendation: Do not agree to change this time to sick leave rather than FMLA. Tactfully explain that you are entitled to FMLA under federal law, and you are claiming that time. Also send them a certified letter that states the same thing — that you believed this was approved FMLA when you took the time off, and you were not informed otherwise until (date.)

    You should also immediately file a complaint with the U.S. Department of Labor about the employer denying your FMLA rights. You can find the nearest office of the DOL at Complaints can be filed by phone. Do not tell HR that you will file this complaint — just do it.

    Tell the DOL the truth — that you did not know the employer required an additional certification for this ongoing health condition, and the employer failed to inform you at the time. Now the FMLA that you had used is retroactively being denied, months later. (Some employers do not require subsequent certification, and it is the employers reponsibility to inform the employee when one is required.)

    Normally we would suggest that you respectfully discuss this with HR first, but it is clear that your HR department is not staffed by reasonable, mature people. By filing a complaint with a government agency, you have greater legal protection than if you simply discussed it with HR.

    We can almost guarantee that the little games will cease as soon as the HR department is contacted by the U.S. Department of Labor, and that your FMLA will immediately be accepted. Just to cover all your bases, provide the employer with the certification of your condition for 5/1/11 to 5/1/12 now, and keep a copy of all correspondence with them, including the original time cards if available. HTH, and thanks for reading the blogs!~ Caitlin

  5. Cat Can Says:

    Thank you so much for your advice Caitlin! I submitted an e-mail to the US Dept of Labor and also to HR. Within 10 minutes I had an approval for all the time off to be covered by FMLA. Thanks again! Great Blog!

  6. Caitlin Says:

    You are very welcome Cat Can, we are so happy that this worked out for you! ~ Caitlin

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