Q & A Session – Retroactive FMLA


Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.


I have an employee who was out on sick leave, but never requested FMLA protection. Can an employee ask for retroactive FMLA?


A qualified employee may use up to twelve (12) workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her position.  5 CFR § 630.1203(4).  In order for an absence to qualify as FMLA leave, the employee must invoke his or her right to FMLA leave and must comply with the FMLA notice and medical documentation requirements.  5 CFR § 630.1203(4)(b).  An employee may not retroactively invoke his or her entitlement to FMLA leave unless that employee and his or her personal representative were physically or mentally incapable of doing so during the entire period in which that employee was absent from work for FMLA-qualifying purposes.  5 CFR § 630.1203(4)(b).  In that case, an employee may retroactively invoke his or her right to FMLA leave within 48 hours after returning to work.  5 CFR § 630.1203(4)(b).  The incapacity of the employee must be documented and he or she must also explain why their personal representative was unable to contact the Agency and invoke the employee’s right to FMLA leave.  5 CFR § 630.1203(4)(b).

If an employer asks an employee if they would like to invoke their right to FMLA leave and the employee declines to do so, the employer may not place the employee on FMLA leave.  5 CFR § 630.1203(4)(h).  Should the employee return to work after declining to invoke his right to FMLA leave and provide insufficient medical documentation to support the absence, then the Agency should follow its sick leave policies, requesting more documentation and/or declining the sick leave request were appropriate.  Where the employee has declined to invoke FMLA leave, any subsequent attempt to retroactively invoke his or her right to FMLA leave for the absence after he returns to work must meet both the FMLA timing and incapacity requirements.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com.

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