This Month Only! >> $20 off and a FREE SHRM tote with your membership and code TOTE2018!
Sign up for free email newsletters and get more SHRM content delivered to your inbox.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
An employer may designate leave as FMLA leave retroactively with appropriate notice to the employee as required in FMLA regulations provided the employer’s failure to timely designate the leave does not cause harm or injury to the employee. The regulations further state that “in all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.”
So what exactly does it mean for an employer to cause harm or injury to an employee by failing to provide notice of FMLA designation? The FMLA regulations provide an example. The example describes a situation where an employee uses leave to care for a child with a serious health condition. Because the employer failed to provide notice that the employer considered this leave to be FMLA, the employee was unable to use FMLA leave at a later date to care for a spouse with an upcoming surgery. The employee might establish that harm had occurred by showing that he or she would have arranged for an alternative caregiver for the seriously ill child if the leave had been designated in a timely fashion.
HR professionals need to be aware that, absent extenuating circumstances, employers must notify employees in writing whether leave will be designated and counted as FMLA leave within five business days after the employer has enough information to determine whether the leave is being taken for an FMLA qualifying reason. Ideally, the five days would begin once an employee returns the DOL Certification of Health Care Provider form or similar documentation. Employers should exercise caution in making retroactive designations without the consent of the employee; under FMLA regulations, an employer may be liable for a claim of interference with, restraint of or denial of the employee’s FMLA rights.
This material is for informational purposes only and not for the purpose of providing legal advice. You should always contact your attorney to determine if this information, and your interpretation of it, is appropriate to your particular situation.
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
SHRM Annual Conference & Exposition
SHRM’s HR Vendor Directory contains over 10,000 companies