I have recently taken a position in human resources with my company. We have an employee who went out on disability (because of an at home injury)on November 10, 2005 and has still yet to return to work. The date is now February 9, 2006. He has just exasted his 12 weeks he is allowed under FMLA. However, the person who was in my position before myself was not aware that proper FMLA paperwork had to be filled out by the employer. Can we retroactivate the date of FMLA to the first day he went out on disability. Or do we have to start from the day he requested FMLA which was after his twelve weeks of short term disability had run out. (January 31, 2006) This is the third time he has gone out on disability in his four years of employment with us because of at home "injuries". I was wondering what I can and cannot make up for now that I have taken this position. Can I retroactivate at this point? Have we messed up because the proper paperwork was not issued in a timely manner? Can I pay him for his accrued vacation time to get back the insurance premiums he has been delinquent on for almost 14 weeks now? Because of our possible mistake has he just doubled his time off? Please help!!! We are working in the state of Louisiana. Thank you in advance for any advice you may give. :confused:

You might like to read up on the case Ragsdale v. Wolverine, a US Supreme Court case which is precisely on point to your question. The Supremes ruled in that case that failure to notify the employee that the time being taken was being applied to FMLA, does NOT entitle the employee to additional time. As long as the failure to properly document does not result in the employee receiving less time than they are entitled to, the employee is still only entitled to the amount of time they are guaranteed under the law.

They went on to say that this does not excuse the employer from making all good faith efforts to document correctly. It's simply that an administrative error does not entitle the employee to additional time.

Cbg is quite correct that Ragsdale is on point with your questions...

HOWEVER...

As an interesting side note that cbg rarely posts :D :

Tracy Ragsdale LOST this case because she could not prove that she would have taken other action had she been appropriately informed of her rights and responsibilities.

What I would consider primarily is this person's alleged disability. If this disability is even remotely conducive to intermittent leave, I would give another 12 weeks FMLA, BUT THIS TIME DOCUMENT. The Supreme Court opinion on Ragsdale is VERY CLEAR that a much different decision may have resulted if the employee would have taken different action had they been informed. If this person COULD HAVE conceivably worked an intermittent leave schedule, then I would not count anything retroactive because your failure to advise him of such could be construed as interfering with his leave rights (at least that's what the Supreme Court thinks, anyway).

The Supreme Court ruling on Ragsdale opens the door for a suit on the basis of equitable estoppel. Basically, an employer's failure to properly advise the employee of their eligibility for leave, may be deemed as interfering with his/her rights, IF the employee could have taken other action had he/she been properly notified.

I am also in Louisiana. You can PM me, and tell me what part of the state, if you'd like, and I'll tell you best I can what your chances are of losing.

The thing about FMLA is that you can rarely go wrong with giving more, but you will likely be sued for cutting it short!

As far as the premiums go, change your policy first. You should notify EVERYONE that accrued vacation will be required for ANY leave of absence, and that premiums will be deducted accordingly. You shouldn't just go and charge accrued vacation to produce a paycheck, and then deduct premiums without changing the policy and doing so for EVERYONE. If you do it to this one guy only, it seems eerily retaliatory to me.

The specific reason Tracy Ragsdale lost the case is not the point. I'm not quite sure why you are so convinced that it is the main key to each and every FMLA case..

At this point we have offered to accommodate the employee by substituting any manual labor duties for duties he might be capable of (answering phone, computer entries, etc.) However, he refuses to cooperate and says his doctor told him not to do any walking. The disability insurance has now cut him off, because they feel he is not cooperating and we have offered compromise as far as his job duties.
As far as the vacation pay goes, we are not singling out this one employee. When we hire new employees they sign a form giving us the right to take out any insurance premiums they are responsible for, out of their checks. When we have expectant mothers they pay ahead, any insurance premiums they might have when they go out on maturnity leave. This particular employee is over 90 days late on his insurance premiums, and we shouldn't have to continue to foot the bill. Under FMLA, the employer can cut the employee off the insurance after the premiums are 30 days late and the employer gives a fifteen day notice to the employee of their intentions.