HR Question:

I just discovered that an employee’s absence qualifies as FMLA leave, but I didn’t designate it as such from the start. Can I backdate FMLA paperwork and designate it as FMLA-qualified leave?

HR Answer:

The short answer is FMLA leave paperwork can be backdated under certain conditions. According to the Department of Labor’s FMLA guidance, if the delay in designating the leave as FMLA doesn’t harm or adversely impact the employee and you notify them appropriately, retroactive designation is allowed. Both the employer and employee can agree to retroactively designate leave as FMLA if it qualifies for FMLA protections.

What is FMLA and Who Must Comply?

The Family and Medical Leave Act (FMLA) is a federal law that provides up to 12 weeks of unpaid, job-protected leave for specific family or medical reasons to eligible employees who have been employed for one year and worked at least 1,250 hours in the last year. The law is administered by the U.S. Department of Labor (DOL) and applies to private employers with 50 or more employees within a 75-mile radius, public agencies, and educational agencies.

What to Consider Before Backdating FMLA Paperwork

A key consideration in backdating FMLA leave paperwork is verifying there is no harm or injury to the employee. For example, if an employee takes leave to care for a seriously ill family member – and they are not informed that the leave qualifies and is designated as FMLA – they may not be able to use FMLA leave later for another qualifying reason, such as their own serious health condition or the birth of a child. In such cases, the employee may argue that harm occurred because they would have made different arrangements if they had been aware of their FMLA rights.

Timely Communication is Essential

We encourage covered employers to become familiar with the FMLA and your responsibilities for administering the act within your organization. The best practice is to provide written notice to employees within five business days of learning that the leave may qualify as FMLA leave. However, under certain conditions, backdating FMLA leave is allowed. To learn more, the Department of Labor provides helpful Frequently Asked FMLA Questions and Answers. Additionally, if you’re still in doubt, consult your legal counsel for guidance.

Thank you to Sherri Hume, SHRM-CP, HR Business Advisor and Lorrie Diaz, MS, PHR, Senior HR Business Advisor, for contributing to this HR Question of the Week.

It can feel tricky navigating through HR Compliance challenges, like FMLA administration, but you don’t have to do it alone. You can turn to the HR experts at Clark Schaefer Strategic HR to help you with your HR Compliance dilemmas. Learn more about how we can support your HR Compliance and Recordkeeping needs or Contact Us. We’d love to hear from you!