Legal Question in Medical Leave in California

Fmla
I granted medical leave to an employee without specifically designating it as FMLA. I only put her on ''disablity.'' She is almost hitting her 12 weeks because she keeps extending with a doctor's note. Can I retro activiate her FMLA now? I did not inform this employee that she could only take 12 weeks of leave.

Asked on 1/27/09, 6:13 pm

3 Answers from Attorneys

Terry A. Nelson Nelson & Lawless

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Re: Fmla

You need to confirm to her in writing that she 'has been' on FMLA leave and when it ends, so as to advise her she must return by then or risk termination. If you end up needing legal help in this, feel free to contact me, sooner rather than later.

Answered on 1/27/09, 6:57 pm

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Frank Pray Employment Law Office of Frank Pray

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Re: Fmla

US DOL FMLA forms usually provide the employee notice that medical leave is designated as FMLA leave. However, federal courts have generally held that the leave is FMLA leave even if the employer does not designate it to be such, apparently on the principle that the protections of the Act apply even without notification. (Of course the reality is that an employee may accelerate her return to work date in order to preserve her job. Some employers (certainly not your company) can use this lack of notice to then fire the employee going over 12 weeks.) What to do? I suggest doing just what you have stated: Give her a clear statement of the necessary return to work date, or that she risks her position not thereafter being held open for her.

Answered on 1/27/09, 7:56 pm

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