Legal Question in Medical Leave in Ohio

Re: retro active fmla

It depends on the notice that you gave your employer. Employees are not required to specifically invoke or even mention the FMLA in order to have a FMLA-qualified leave. They are, however, required to give the employer enough information to put the employer on notice that the absence may qualify under the FMLA. For example, if you simply said you were �sick� when you called in and did not supply any additional information in the following two-day period, the employer may deny your request for failing to give it the required notice. If, on the other hand, you provided additional information that was sufficient to let the employer know that it may be a FMLA-related absence (e.g., �my son is/was having an asthma attack�), then the employer has a duty inquire further if necessary to determine whether the absence did, in fact, qualify as FMLA leave and to designate the leave accordingly. In the case of unforeseeable leave, as long as sufficient notice is given within two days after the need for leave arose, you should be deemed to have satisfied the notice requirement. Again, it is a fact-specific issue and depends on what you told the employer and when.

Even if you did not supply the employer with any information within two days, you can still apply for FMLA leave. While the employer may deny it because you did not supply the required notice, it has the option of waiving the notice requirement.

Additionally, the employer can only deny FMLA leave for failing to give the required notice if you had actual knowledge of the notice requirement. You may be deemed to have had actual knowledge of the notice requirement if, for example, the employer displays FMLA posters, pamphlets, etc. that explain the notice requirement.

The information contained herein is for informational purposes only; it is not to be construed as legal advice; and it is not intended to and does not create an attorney-client relationship.