It’s (Usually) Not Too Late to Provide FMLA Notice


Many of us who are labor and employment attorneys and/or human resources professionals recall the prior law under the Family and Medical Leave Act (FMLA), whereby if the designation of the employee’s leave as pursuant to the FMLA was delayed, the employee became entitled to 12 additional weeks of  leave from the date of the notice.  Fortunately, the law has changed so that now, if the FMLA notice is given within a reasonable time following the beginning of the leave, the 12 week period may be retroactively started with the first day out of work. If the notice is not given within a reasonable time after the FMLA leave has begun, the employee will receive an additional “reasonable” amount of FMLA leave, determined on a case-by-case basis.  

There are two important other ways that employees may become entitled to more than the base 12 weeks of FMLA. First, while FMLA leave is unpaid, employers may mandate that the employer take any paid vacation, sick or other time off (PTO) concurrently with the FMLA.  If employers fail to do so, employees may well be entitled to more time away from work while they use up their PTO time.  Second, the Americans with Disability Act (ADA) may apply, which requires employers to provide additional unpaid leave after the FMLA’s 12 weeks have expired, as part of the ADA duty to reasonably accommodate their employees’ disabilities.  Note that the workers’ compensation law can also affect the analysis. 

As always, experienced employment counsel should be consulted whenever employers are faced with the issues under the FMLA or ADA.