Is it my right to backdate to April 1st for FMLA job protection based on the situation above? Sedgwick so far has stated that due to state and federal regulations they can not. I have looked at the DOL information and there statement seems to be false. I would like FMLA backdated to Apr 1st based on my medical condition and misdiagnosed issue with my physician. Is there statement true that I am only able to backdate 30days or is it 12 months because that is what I found on the DOL website? Also Sedgwick the insurance company I am corresponding with will not reference the state and federal regulations they refer to; this leads me to believe they are not giving me the right info.
I understand. Give me a bit to research this. Pete
Thanks, XXXXX XXXXX me know if you need any more info.
When did you first notify your employer of your intent to take FMLA leave or your intention or desire to do so?
I have reviewed at length the regulations you cite as well as the FMLA and pertinent regulations. It is important to remember that, while FMLA protection is typically initiated by a leave request, employees need not expressly assert FMLA rights by name, or even make a formal leave request, in order to obtain protection. Rather, the Act imposes obligations on an employer as soon as it acquires knowledge that an absence is potentially FMLA-qualifying. If the employer lacks sufficient information to determine whether the leave qualifies under FMLA, then it is the employer's obligation to inquire further. Nonetheless, an employee giving notice of the need for unpaid FMLA leave must explain the reasons for leave so as allow you to make this determination.
I believe your interpretation of the FMLA and applicable regulations is correct. You simply need to notify your employer that leave is necessary for a medical reason. Based on the information you provided, this is precisely what you did in April of 2009. The medical condition continued through August of 2009. During this time, the employer documented time off, reporting attendance problems and deduced time from your accrued paid time off. Clearly, the employer knew that the medical condition was impacting your ability to work and in fact it was doing so. The employer did indeed have an obligation to determine whether the FMLA was applicable. The fact that the employer did not investigate this immediately or did not perform the analysis required until several months later does not mean that you did not request leave appropriately. So long as you notified the employer of the need for leave or time of due to a medical condition, this is sufficient under the FMLA. This notice is also sufficient to trigger the employer's obligation to further investigate the applicability of the FMLA.
In reality, you are not asking the employer to back date the leave request. Rather, you notified the employer of the medical issue in April of 2009 and then were unable to work. The progression of the medical condition is also documented by your physician. The fact that the employer failed to timely perform the analysis cannot be used as a penalty against you. I think you are appropriately asking the employer and carrier to start your leave in April of 2009, when you requested time off for a serious medical conditions.
I hope this helps. please let me know what other and further assistance I can provide.
Here is some additional information:
The FMLA provides that "an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period for ... a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. §2612(a)(1)(D). The Sixth Circuit has explained that "to invoke the protection of the FMLA, an employee must provide notice [to the employer] and a qualifying reason for requesting the leave." Brohm v. JH Properties Inc., 149 F.3d 517, 522 (6th Cir. 1998) (citing Manuel v. Westlake Polymers Corp., 66 F.3d 758, 762 (5th Cir. 1995)). An employee need not specifically mention the FMLA to provide adequate notice. Id. Rather, for adequate notice, the employee need only convey information that is reasonably adequate to inform the employer that he is making a request to take leave for a serious health condition that renders him unable to perform the duties of employment. Id. This notice requirement helps employers accommodate
employee absences for specified family and medical reasons. Gay v. Gillman Paper Co., 125 F.3d 1432, 1436 (11th Cir. 1997). Employees should be aware of their requirements of their job as well as the requirements of their employer as to give notice as soon as possible. Id.
Section 2612, provides in part: (2) Duties of employeeIn any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) of this section is foreseeable based on planned medical treatment, the employee - (A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and (B) shall provide the employer with not less than 30 days' notice, before the date the leave is to begin, of the employee's intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
See also, Aubuchon v. Knauf Fiberglass, GmbH, 359 F.3d 950, 953 (7th Cir. 2004) (employee must give employer enough information to establish probable cause to believe she is entitled to FML). Under the regulations, an employee must provide at least oral notice sufficient to make her employer aware that she needs FML, and information
about the anticipated timing and duration of the leave. 29 C.F.R. § 825.302(c); Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001) (holding that this provision applies even in situations where advance notice is not possible).
I hope this is not too overwhelming. Please let me know what other assistance I can provide.
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