Retroactive FMLA: For Employers It’s All About The Timing

By: Kathleen Connelly, Esq.

A recent holding by a New Jersey federal court in serves to remind employers that when employees fail to give timely notice of the need for medical leave they may be forfeiting the protections of the Family and Medical Leave Act (FMLA).    

The Facts: On May 24, 2011 Camden County Corrections Officer Walter Radlinger had fully exhausted his intermittent family leave under the FMLA, and his subsequent absences were thus deemed absences without leave (AWOL) by the County, which triggered disciplinary action.  In lieu of termination, the parties entered into a settlement agreement whereby Radlinger agreed to a 90 day staggered suspension, one year of probation and an acknowledgement that future abuse of the County’s FMLA, sick leave or absenteeism policies would result in termination proceedings. 

In March 2012 Radlinger was granted another FMLA leave and following his return to duty he used additional sick time. Although he had fully exhausted his allotment of sick days he had not flly exhausted his 12 week FMLA entitlement at that time.   Between June 4 and July 9, 2012 Radlinger called out sick an additional four times.  These four additional sick days were characterized as AWOL.  Upon his return to work Ratlinger was served with a notice of termination proceedings.  In response Ratlinger submitted an application for intermittent FMLA leave to cover his excess absences, citing the cause as recurrent kidney stones. The County denied Ratlinger’s request for intermittent leave as untimely. Ratlinger responded by filing suit claiming interference with his rights under the FMLA.

The Holding: In upholding Ratlinger’s termination, the court pointed to provisions of the FMLA which obligate employees to provide advance notice when leave is foreseeable, and “as soon as practicable” when the leave is unforeseeable.  In this instance, the court faulted Radlinger for not making an application for FMLA until after the County had initiated termination proceedings.  The court rejected Ratlinger’s interference claim because there was no evidence that the County knew or should have known that the absences qualified for FMLA, and Ratlinger offered no basis for his delay in seeking to retroactively designate his AWOL days as protected FMLA leave.  

The Takeaway:  Although leave rights under the FMLA are liberally construed by the courts, employees must do their part to promptly notify employers of their need for FMLA leave.  In circumstances where an employee cannot provide notice because i) leave is unforeseeable or ii) the employee is unaware of their leave rights under the FMLA, retroactive FMLA leave designation of unauthorized absences should generally be  permitted to avoid FMLA interference claims.  However, in situations where an employee is fully aware of their FMLA rights and without good reason fails to provide the required notice, the employer is justified in denying  the employee’s efforts to retroactively designate absence as protected FMLA.