Ask Leslie: What If I Fail To Designate FMLA Leave?

By Leslie Zieren, The McCalmon Group, Inc.

Dear Leslie:

We have 50 or more employees. Our employee has been out for a month on unpaid leave to get treatment for a mental impairment under the ADA. I just realized I could have counted this time as FMLA leave. He is an eligible employee. What do I do?

Signed: Claude


Dear Claude:

Once an employer knows an employee is taking leave that could qualify as FMLA leave, the employer must give the employee a "Notice of Eligibility and Rights & Responsibilities Notice", including a blank medical certification form. When that is returned, an employer must then issue a "Designation Notice".

Since you failed to do this, you should check with your local counsel to see if you can retroactively designate the leave as FMLA leave or whether it is less risky to designate it going forward only.

Retroactive designation can be made, provided the employer's failure to timely designate the leave does not cause any harm to the employee. And, the FMLA states 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."

Jack McCalmon and Leslie Zieren are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.

If you have a question that you would like Jack McCalmon or Leslie Zieren to consider for this column, please submit it to Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.



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