Human Resource Blog

Retroactive FMLA

How far back is an employer required to go when an employee requests FMLA after the date of the injury or illness?

The Family and Medical Leave Act (FMLA) regulations state that employees must give a 30-day notice when the need for leave is foreseeable or, if not foreseeable, they must give as much notice as is practicable under the circumstances.

However, note that because employees do not have to ask for FMLA leave by name, the employer also bears some responsibility, as long as the employee has given sufficient information to make the employer aware of the need for leave. In other words, if the employee notified you that because of an injury, he would not be able to perform his job for the next two weeks, this would be your cue to provide the employee with a Notice of Eligibility and Rights and Responsibilities, to let him know of his eligibility for leave and how he could apply.

If the employee failed to return the healthcare certification by the due date (which must be at least 15 days after the date he was given the Notice of Eligibility), and any necessary time extension granted due to the employee’s inability to return the certification on time despite his best efforts, then you could deny the leave due to the employee’s failure to return the certification.