FMLA Retroactive Designation of Leave

The FMLA allows for the retroactive designation of leave.  This is an important feature of the FMLA as it can serve to protect the employee from being penalized (write ups, discipline) for absences and tardiness that had been issued before the FMLA was formally granted by the employer. The FMLA regulations require an employer to "notify the employee whether the [employee's] leave will be designated and will be counted as FMLA leave within five business days" of when the employer has "enough information to determine whether the leave is being taken for a[n] FMLA-qualifying reason." 29 C.F.R. § 825.300(d)(1). The designation notice "must be in writing" and "must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement," including, if known, "the number of hours, days, or weeks that will be counted against the employee's FMLA leave entitlement." 29 C.F.R. §§ 825.300(d)(4), (d)(6). An employer may retroactively designate leave as FMLA leave "with appropriate notice to the employee" provided that "the employer's failure to timely designate leave does not cause harm or injury to the employee." 29 C.F.R. § 825.301(d).