Retroactive designation of FMLA leave did no harm

by on March 18, 2009 · 0 Comment POSTED IN: HR Info Center

Recent Supreme Court decision eliminates some FMLA regulations

Good news for employers: Designating FMLA leave retroactively is legal – as long as the worker isn’t harmed as a result.

As you may know, in March the U.S. Supreme Court invalidated the FMLA regulations that said if an employer didn’t designate an employee leave as FMLA, any time off before the worker received notice of the designation can’t count against the 12-week entitlement (Ragsdale v. Wolverine Worldwide, Inc.).

Here’s a recent case that clarifies Ragsdale: A legal secretary’s 40+-hour-a-week job entailed many paralegal duties. Suffering from stress, she requested a non-paid company leave. Fourteen weeks later, when she was ready for work, she was offered a new position that her employer believed would be less stressful. But she refused to return if it involved paralegal duties or working more than 40 hours a week.

When she rejected the alternative position, she was taken off the payroll. At that time her leave was designated as FMLA leave, and she was notified that since she’d exceeded her 12 weeks she was no longer entitled to a job with the firm.

She sued – and she lost. Why? Because of the Ragsdale decision. The court noted that even if she’d been given 12 more weeks of FMLA leave she still wouldn’t have returned to work. The retroactive designation didn’t harm her, so it was perfectly legitimate.

Cite: Summers v. Middleton & Reutlinger, PSC, U.S. District Court, Western District of Kentucky, No. 3:99CV-85-S, 6/20/02

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