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FMLA
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We've had an employee who has taken over 20 sick days so far, and is now applying for FMLA. Can we go back and count the days he missed as FMLA under the new regulations?
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FMLA
posted at 5/28/2010 10:10 AM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
From 29 CFR 825.301:
"(d) Retroactive designation. If an employer does not designate leave as required by Sec. 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by Sec. 825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. 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." |
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FMLA
posted at 6/3/2010 2:32 PM EDT
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Posts: 160
First: 12/5/2002 Last: 4/26/2011 |
It depends on what those 20 sick days were taken for. If it is for a different condition or reason, especially one that would not normally qualify for FMLA, like a cold, then it probably is not a good idea to retroactively designate as FMLA.
If these 20 days were for the same condition as the current request then it makes more sense. Also those 20 sick days would need to be within the last 12 months since the 12 week entitlement is annual and will reset. Reading between the lines - you want to limit the employee's time off. Here are some other things to consider. Does he have 1,250 hours worked during the past 12 months? If he took 20 sick days, he may not meet the minimum hours to qualify for the leave. Only count hours worked, not sick, holiday or vacation. |
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