Employment Law: Designating FMLA Retroactively – Risks and Rewards for Employers

DMEC@Work

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FMLA NoticeBy Jeff Nowak, JD

Co-chair, Labor & Employment Practice
Franczek Radelet P.C

A client recently called me with a question that has become far too common in FMLA administration. This employer forgot to send the proper FMLA notices when the employee took leave after a workplace injury.

There is little doubt this employer was put on notice of the employee’s need for FMLA leave when he was unable to work for several months after wrenching his back while at work. At the outset of the absence, the employer was obligated to provide the employee a Notice of Eligibility and a Rights and Responsibilities Notice, and to designate the leave as FMLA-protected after medical certification was returned. When the employer failed to provide these notices, it lost the ability to count the lengthy absence as FMLA leave. Or did it?

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