Yes, an employer can retroactively designate leave as FMLA-qualifying —- BUT only if they fail to do so in a timely manner and only under specific conditions. The employer must provide proper notice to the employee about the retroactive designation, and this can only be done if the delay did not cause harm or injury to the employee.
If the employee can show that they were harmed by the delay (e.g., they missed certain benefits or job protections), the employer may not be allowed to retroactively designate the leave. Additionally, the employer and employee can mutually agree to retroactively designate the leave as FMLA-qualifying.
For more detailed information, you can refer to the U.S. Department of Labor’s FMLA FAQ.
- The FMLA regulations require an employer to “notify the employee whether the [employee’s] leave will be designated and will be counted as FMLA leave within five business days” of when the employer has “enough information to determine whether the leave is being taken for a[n] FMLA-qualifying reason.” 29 C.F.R. § 825.300(d)(1).
- The designation notice “must be in writing” and “must notify the employee of the amount of leave counted against the employee’s FMLA leave entitlement,” including, if known, “the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement.” 29 C.F.R. §§ 825.300(d)(4), (d)(6). A
- An 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.” 29 C.F.R. § 825.301(d).
Please let me know how I can help your further. Wendy
