Human Resource Blog

FMLA

We have an employee that has been in the hospital off & on for the past 4-5 weeks.

He gets a doctor release, returns to work and everything seems to be ok, and then he ends up in the hospital again.

I have not designated any of his leave as FMLA, but hind-site says I should have. He is out again.

Is it possible to back-date his intermittent leave? Or, do I start from today?

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Current FMLA regulations require that the employer notify the employee in writing of his or her FMLA rights within 5 days of ANY absence that could be covered by FMLA, even a partial day. So you are in violation of those regulations. (It is always better to notify an employee who does not have a serious health condition, than to fail to notify an employee.)

So you should notify this employee immediately.

However, yes, in some cases the current FMLA regulations allow you to retroactively count time off as FMLA. This is permitted only when it does no harm to the employee. Usually that means that the employee was physically unable to work and would have taken the time off even if he had known it was being counted as FMLA. Time taken off for a doctors appointment cannot be counted as FMLA retroactively. The employee could argue that if he had known it would be counted as FMLA, he would have rescheduled the appointment.