Can an employer retroactively designate FMLA leave?

An employer may designate leave as FMLA leave retroactively with appropriate notice to the employee provided the employer's failure to timely designate the leave does not cause harm or injury to the employee. The regulations further state that "in all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave."

So, what exactly does it mean for an employer to cause harm or injury to an employee by failing to provide notice of FMLA designation? The FMLA regulations provide an example. The example describes a situation where an employee uses leave to care for a child with a serious health condition. Because the employer failed to provide notice that the employer considered this leave to be FMLA, the employee was unable to use FMLA leave at a later date to care for a spouse with an upcoming surgery. The employee might establish that harm had occurred by showing that he or she would have arranged for an alternative caregiver for the seriously ill child if the leave had been designated in a timely fashion.

HR professionals need to be aware that, absent extenuating circumstances, employers must notify employees in writing whether leave will be designated and counted as FMLA leave within five business days after the employer has enough information to determine whether the leave is being taken for an FMLA qualifying reason. Ideally, the five days would begin once an employee returns the DOL Certification of Health Care Provider form or similar documentation. Employers should exercise caution in making retroactive designations without the consent of the employee; under FMLA regulations, an employer may be liable for a claim of interference with, restraint of or denial of the employee's FMLA rights.