We are going to use an employee named Janet as an example…Janet is sick and needs retroactive FMLA.
Janet has been sick and forgot to return her FMLA medical certificate paperwork to her employer within the required 15 days.
She received a 7-day extension, but she was so sick, she forgot to return that as well.
She was denied FMLA intermittent leave and disciplined for breaking her companies’ attendance policy, because she never turned in the proper paperwork.
Can she reapply for retroactive FMLA?
Let’s start by remembering, when FMLA ends ADA begins, including retroactive ADA if FMLA is denied. So, start by sending the FMLA to ADA transition notification with confirmation that FMLA was denied due to a failure to provide the medical certification. This notification is sent after Janet fails to respond to both FMLA Conditional Eligibility Request letters. Once the employee has been formally notified that their FMLA leave is denied due to failure to provide thee medical certificate, it is very common for the employee to then provide the original FMLA certification paperwork – as the ADA EFJA Medical Evaluation Form is more comprehensive (Leave Management Solution’s ADA form is much more comprehensive than the FMLA medical certificate).
Always Error on the side of the employee. However, if they informed you of a need for FMLA and you Conditionally Designated FMLA within the five-day window of notification of need for leave — when they employee DOES bring in the Medical Certificate, even if late, start the FMLA leave on the date the original request was conditionally designated. You can retroactively designate to the original date you designated the Conditional FMLA, if the medical certificate is for that same Serious Health Condition. If however you missed the 5-day Conditional Designation deadline and you are attempting to implement a retroactive request, be sure to formalize the employee’s request, in writing, with the employee’s signature that they are requesting you retroactively designate FMLA.
I would also suggest taking a look at retroactively removing any discipline that occurred if the employer knew or should have known of the potential qualifying ADA disability and imposed a disciplinary process prior to engaging in the interactive process if FMLA was denied or not addressed.