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Can FMLA start rectoactively? Kentucky

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  • Can FMLA start rectoactively? Kentucky

    I have an issue where an employee left work early on a scheduled Saturday March 5. Returned to work Monday March 7 and took short term disablilty and FMLA paperwork with them. The person was then out for a month for a back injury. (Not work related).

    The FMLA paperwork when it came back stated: "Date condition commenced: 3/1/11". It goes on to say, "Probably duration of condition: "3 months". On another page it states that the "beginning and ending dates of incapacity are 3/5/11 till 3/28/11".

    We did not get the form back until after the 5th obviously.

    Question is, I assume the start of FMLA would be the beginning date of incapacity which would be 3/5/11. But it seems I have read that FMLA cant be designated retroactively? So, would an employee missing any time before the FMLA paperwork is tyrned in automatically fall under whatever attendance system a company has, even though the medical paperwork indicates those days as a period of incapacity?

    I appreciate your help!

  • #2
    When DID you get the FMLA paperwork back? It matters.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      Not until 3/10/11 or so I believe. (I need to do a better job dating these. I sometimes am not the one that origionally gets it.).

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      • #4
        All the time may be attributed to FMLA, even while you are awaiting the paperworks return. The clock starts with the first day of medical incapacity on a scheduled day of work. It is not uncommon to have a delay in getting the documentation to support FMLA, particularly when the event is not planned.

        Safer is if the employee reports they are out for a reason which could implicate FMLA, to go ahead and provisionally designate it as such, pending receipt of the paperwork from the doctor. Still, they got the paperwork in to you within a reasonable amount of time and you are good to go ahead and label the whole period of time as FMLA.
        I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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        • #5
          Since you received the forms within the 15 days allowed by law, you have no problem with dating all the time as FMLA.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            Thanks! What was I thinking when I thouht I had read that FMLA should not be initiated retroactively?

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            • #7
              Except in situations where the need for FMLA is forseeable (maternity, scheduled surgery), in all other instances there will be some lag-time between the employee going out on leave/being absent from work and the FMLA certification paperwork being completed and received by the employer.

              Yes, the employer may retro-actively apply FMLA to those absences certified as FMLA related upon receipt of the certification form. In fact the employer must do so. You can't, for example, discipline an employee for being absent the week of April 4th due to appendicitis because you didn't receive the FMLA paperwork until April 11th.

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              • #8
                When FMLA was first implemented as a law, the US DOL decided that with limited exceptions that related to getting the paperwork in an emergency situation, FMLA could not be retroactive. So you weren't completely out in left field on that.

                However, in 2002, the US Supreme Court ruled in a landmark case called Ragsdale v. Wolverine. In Ragsdale, an employee had been out for something like seven months, but had never been told that the time off was being applied to FMLA. Using the DOL's stance that FMLA could not be retroactive, Ms. Ragsdale insisted that she was entitled to another 12 weeks of leave.

                SCOTUS said no; that the lack of notification, since it had not harmed the employee or caused her to lose benefits she would otherwise have received, did NOT entitle her to additional time.

                The court ruled fairly broadly, but not without limits. Employers were warned that this did not do away with the need for notice. But as long as the lack of notice did not harm the employee or put them at risk for losing benefits they would have been entitled to if s/he had been notified that the leave was FMLA, they did not get additional time because of the lack. Which is another way of saying that yes, FMLA can be applied retroactively.
                The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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