If an employer fails to tell an employee that the leave is FMLA leave, can the employer count the time the employee has already been off against the 12 weeks of FMLA leave?
Yes. The employer may retroactively designate leave as FMLA leave with appropriate notice to the employee provided that the employer’s failure to timely designate leave does not cause harm or injury to the employee. For example, if an employer that was put on notice that an employee needed FMLA leave failed to designate the leave properly, but the employee’s own serious health condition prevented him or her from returning to work during that time period regardless of the designation, an employee may not be able to show that the employee suffered harm as a result of the employer’s actions. However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of
Related Questions
- If an employer fails to tell an employee that leave has been designated as FMLA leave, can the employer count the leave against the employees FMLA leave entitlement?
- If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?
- Can an employer require an employee to use more than two weeks of paid time off during the period the employee is claiming Family Leave Insurance benefits?
