Is it possible to apply FMLA retroactively?

Q. We have 75 employees at our one facility. An employee recently took two months off for a serious operation. We did not classify this as FMLA leave, but now we think we should have. What can we do?

A. Your company is covered by the FMLA, because it employs at least 50 employees at a single facility (so long as it has done so during each working day during each of 20 or more calendar workweeks in the current or preceding calendar year).

The employee would have been FMLA-eligible for leave due to his own serious health condition if he had been employed with the company for at least one year and he worked at least 1,250 hours during the 12-month period before his FMLA leave would have commenced.

The FMLA has employer-notice provisions, under which you should have designated the employee’s leave as FMLA if he was eligible for FMLA time.

You may, however, still be able to do so. The FMLA’s regulations allow you to retroactively designate leave as FMLA if your “failure to timely designate leave does not cause harm or injury to the employee.” The regulations do not define “harm or injury” and this could vary depending on an employee’s individual facts and circumstances. However, one could envision harm caused by a designation of leave that was potentially optional, such as related to caring for a family member when another person may have been available to provide the care.

You should assess whether the employee could claim harm from your retroactive designation of leave. If not, you should designate the leave as FMLA leave now if the employee was eligible for FMLA leave. Designating the time as FMLA could be important if the employee is required to take a second leave later in the same year, because, if you don’t designate this leave as FMLA leave, the employee will continue to have the full 12 weeks of FMLA leave available.

To designate the leave as FMLA leave, you will need to provide notice of your designation using the FMLA notice forms and a written communication explaining the designation. Listen for any employee concerns or objections that could signal a claim some potential “harm or injury” from the retroactive designation. You may want to get advice from an attorney with more detailed information regarding any specific issues of this case.

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Megan L. Anderson is an attorney with Gray Plant Mooty’s Employment Law Practice Group in Minneapolis. Concentrating her practice in employment law counseling and litigation, she ­regularly advises employers and provides training on a variety of employment law issues. Contact her at megan.anderson@gpmlaw.com or (612) 632-3004.