We have an employee out on an unexpected leave that does qualify under FMLA. If we mail him FMLA paperwork, does the clock start ticking on the day we mail the notification, or the day he receives the notification?
Assuming that proper notice and certification have been given within the allowable timeframes, the leave "counting" begins on the day that the leave actually began. What is really happening is that the employer is preliminarily designating the leave as FMLA eligible, pending certification. If a medical certification is requested, failure or refusal to provide the certification is a valid reason to deny leave.
Ordinarily, an employer may not retroactively designate leave taken as FMLA leave. There are two exceptions to this rule. An employer may retroactively designate a leave as FMLA leave where: (1) it has preliminarily designated the leave as FMLA and is awaiting medical certification; or (2) the employer did not know the reason for leave, but learns the reason upon the employee's return and then makes the designation within two business days. Conversely, if the employee did not advise the employer that the reason for his or her leave was covered by FMLA, he or she has two business days upon returning to work to so inform the employer; otherwise, the employee may not subsequently assert FMLA protections.
Employers have some remedies available when employees fail to provide appropriate notice for taking leave under the Family and Medical Leave Act. If an employee fails to provide the required 30-days' notice to the employer of intent to take (foreseeable) leave when there is no reasonable excuse for a delay, the employer is allowed to delay the start of the leave for at least 30 days from the date the employee provides notice.
Where an employee fails to notify the employer of the need for leave, once the need for such leave has became apparent, the absences may be deemed unexcused and the employer may take action against the employee for unexcused absences consistent with the employer's established policies. However, if the employee later demonstrates that he or she had a legitimate need for leave and a legitimate reason for not contacting the employer (for example, a sudden and unexpected hospitalization due to accident or injury) the employer must rescind any adverse action taken against the employee. Further, employers who take adverse action against one employee for failure to adhere to notice requirements must be prepared to take such action in all similar situations, or they risk being accused of discriminatory application of leave policies.
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