I just found out that an employee was off for 2 weeks straight on sick leave in February.  Since I don't see the time sheets, and the supervisor did not report it as possible FMLA, the employee just stayed out as long as necessary and came back without a doctor's note.  Do I go back in time and record it as FMLA-Medical, or do I let it go?  Is there a liability in ignoring it? 

---

Joan E. McGrath

The safest thing to do is not count it against FMLA leave time and ensure that the absences from work were not counted against the employee in any way in terms of your attendance policy.  The only liability in this scenario is if you fail to ensure that the person's absences were not treated as job protected and that later plays a role in the person's separation from your company.

If you want to try to count it against the person's FMLA bank, then you need to understand how your circuit feels about the Ragsdale decision.  How Ragsdale and the details of your situation mesh should be discussed at length.  Unless this is settled in your circuit, and it probably is not (I don't think this has been pursued to the bitter end post-Ragsdale), then the liability here is that you can end up being a test case for determining the scope and limit of the effects of Ragsdale.  Essentially, Ragsdale established at the Supreme court level that 825.700 was not enforceable as written in the context that it was challenged in that case.  Your situation is not exactly like the Ragsdale situation, so it's already a question mark as to whether or not this is a good idea for you to get aggressive about this.  If you decide to go the aggressive route and get sued, let me know because I'd really like to follow the case.

Everyone I know uses scenario 1 and we're in the employer-friendly state of Texas in the employer-friendly 5th circuit.

 

By the way: you can still request the employee obtain a return to work authorization from their physician.  I would also counsel or discipline the supervisor for failing to report the leave and for failing to obtain a return to work authorization if those are established practices or in your handbook.

I agree with TXHRGuy. The safest thing is to give the protection (and non-retaliation) without subtracting it from his FMLA bank. 

I also agree that the Ragsdale situation hasn't totally been played out in all the different circuit courts or in the SC. 

Then I would go proactive at this point by (1) doing a training with your managers/supervisors about notifying HR of FMLA possible situations and (2)  setting up a warning system through whoever does see timesheets that anyone missing more than 3 sick days within a certain period of time be flagged/noted/reported.

Because while in the end while FMLA is unpaid, it can still cost the employer to have an employee out on protected leave past 12 weeks (cost of replacing with temp ee, cost of continuing health benefits, etc).

The FMLA training for supervisors that BLR produces is a great product to start from.