Can FMLA Be Retroactive?

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The Family Medical Leave Act allows employees to take up to 12 weeks off to attend to their own medical needs or take care of ill family members. Employees must notify their employers in advance in most circumstances. Employers cannot apply FMLA retroactively unless there are exceptional circumstances, such as an emergency situation in which an employee could not inform the employer of his need ahead of time.

General Prohibition

FMLA cannot be retroactive in most cases. For example, if an employee is disciplined for excessive absences, he cannot then state that the absences were required for medical reasons and claim a violation of his right to FMLA. Similarly, if an employee asks for FMLA leave, her employer cannot state that she has used her FMLA days because she took time off earlier that had not been designated FMLA leave.

Grace Period

If an employee is unable to request FMLA prior to taking time off, he must do so within the grace period. The grace period differs from state to state; it generally is between two and five days of the employee's return. The employee must inform her employer in writing that she took time off for FMLA and provide appropriate certification such as doctors' notes.

Inability to Certify

If the employee does not have adequate evidence of the need for FMLA, such as the absence of a doctor's certification, the employer may deny his FMLA request. If the employee takes time off anyway and later brings in the appropriate certification, the employer can retroactively count the time off as FMLA days.

Avoiding Confusion

To avoid confusion over whether days are FMLA leave, employees should notify their employers in writing of the need for FMLA days as far in advance as possible or within two business days after taking FMLA leave. Employees must visit doctors and get written certification of the need for the absence and when the employee can return to work. Employers should approve FMLA leave in writing as well, and list how many FMLA days the employee is taking and how many days she has left.

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