3 Day Absence Rule/2 Day Notification Rule
We are an employer covered by FMLA.
We had an EE request one full day of absence for outpatient surgery on Friday, May 28, 2004. He told us that it was almost a certainty he would return to work on Tuesday, June 1. (We were closed for Memorial Day on Monday, May 31.)
He called on Tuesday, June 1 and stated he was not yet feeling up to par as a result of his surgery and requested to be off Tuesday, June 1 which we, naturally, granted.
He called on Wednesday, June 2 and again stated that he was not up to par but would absolutely be able to return on Thursday, June 3.
He did return on Thursday, June 3.
Since he had now missed "THREE FULL CONSECUTIVE DAYS" we prepared our Employer Notification [to Employee] of FMLA Designation. However, one of our HR clerks stated that since we, as an Employer, can only retroactively designate two days of past absences as FMLA, we should really be doing the paperwork on the first day of absence or even prior to the absence in the event that it becomes FMLA qualifying. (????)
I say you can't possibly designate the time as FMLA until it becomes FMLA qualifying and therefore, should not prepare any paperwork until immediately after the qualifying event occurs.
In reading the regs on-line today, I do now understand there needs to be "MORE than three consecutive days" and those are CALENDAR days and not WORK days so, in this particular scenario, the qualifying event would have actually occurred on Monday but regardless of that issue how do you address the fact that as an employer you have an obligation to notify the employee within 2 days that the time off will be designated as FMLA.
Please understand that we, as an employer, tend to always error on the side of being very generous to our employees when it comes to attendance issues but I just want to ensure we understand our obligations and are applying them correctly and consistently.