Can FMLA Be Retroactive?

The federal Family Medical Leave Act allows employees to take up to 12 weeks of unpaid leave from work to take care of certain family obligations. During this time, the worker's job is protected; he cannot be terminated and his health insurance continues. Since emergencies aren't something you can plan, the FMLA can be retroactive if you follow certain reporting requirements. FMLA leave can be either continuous or intermittent.

For FMLA eligibility, you must work for an employer for at least one year, with a minimum of 1,250 work hours during the year prior to taking leave. Only employees at a workplace with a minimum of 50 employees are eligible for FMLA. You can take FMLA after the birth or adoption of a child or to care for immediate members of the family, or for yourself if suffering from a serious health problem.

The U.S. Department of Labor considers immediate family members as a parent, spouse or minor child with a serious health situation. If your child is over 18 and physically or mentally handicapped, or a military veteran who needs care, you can also use FMLA. Because of this specificity, you aren't eligible for three months unpaid leave if your aunt or mother-in-law has a serious accident and needs help, even if she lives with you.

If you know you'll need FMLA leave, such as if there's an impending birth or scheduled surgery, notify your employer in writing at least 30 days before the leave date. If your need for leave falls in the "stuff happens," or unforeseeable category, contact your employer by phone or e-mail as soon as possible, usually within one or two business days after the event. You must let your boss know specifically that you need FMLA leave. If your employer does not know that you were absent due to a FMLA situation, give notice within two days of returning to work that it was FMLA-related, and you should receive leave retroactively.

Changes made to FMLA regulations in 2009 permit FMLA retroactive designation if the employer fails to send the employee a designation notice within five business days after she learns that requested leave qualifies for FMLA. She can then retroactively designate the employee's absence as FMLA leave after notifying the employee. The regulations state the employer's failure to designate FMLA leave in a timely manner cannot cause the employee injury or harm.

For FMLA purposes, a serious health condition means a situation requiring more than three work or school days requiring treatment by a health care provider; pregnancy or periods of incapacity because of chronic or long-term condition, whether or not there is an effective treatment. Your employer might require you to provide medical certification from a health care provider regarding your or your family member's condition.

You have a minimum of 15 calendar days to supply this information. Your employer may pay for you to obtain a second certification from another health care provider of the employer's choice. If the two health care providers certifications don't agree, your employer may pay for your to obtain certification from a third health care provider, chosen by both you and the employer. This third opinion is the final arbiter.