FMLA RETRO?

I am not an expert on this topic, but I think there are some guidelines you have to follow:
1) The size of your company will dictate if you are required to offer FMLA. If you are small enough, then FMLA is not required.
2) I think most employee handbooks state that you need to request in advance or as soon as you know time is needed. In this case, there might be an argument that the employee didn't know this would be ongoing and require additional time off. My interpretation on this would be that with the current knowledge of the condition qualifying her for FMLA, you can count the original days.
3) Understanding people's reluctance to submit a request (could there be a fear that it would hurt her long time chances of employment?) and management's poor follow up, you should look to implement a formal process for anyone who takes off more than a few days for illness or family emergency. This would cover you as the employer and make sure the employee understands their rights.

I, like you, am curious as to what others with more expertise in this area have to say.

If you have over 50 employees FMLA applies. The law also states a serious medical condition can be designated after three consecutive days of leave. We have modified our policy manual to incorporate all of this; I still can't seem to find anything about back dating the leave.

I used to handle FMLA for a school district years ago - but it was always cut and dry. I never had a case like this before.

With an employee's personal health, it is difficult for the individual to prioritize these type of matters (administrative) when in the midst of treatment or diagnosis. The FMLA regulations allow for this. Here is an excerpt of the reg which would allow for back dating noting the term "practicable" and the information reported in the certification.

Employee should give 30 days notice or if 30 days notice is not possible - as soon as practicable. In situations when employee is not able to complete FMLA certification prior to commencement of FMLA leave (employer must allow at least 15 business days to submit the initial certification), to determine the certified leave period. Certification Part A: Medical Facts requires identification of the - "approximate date condition commenced", "probable duration of condition", "date(s) you treated patient for condition" and Part B: Amount of Leave Needed - "estimate the beginning and ending dates for the period of incapacity". If the doctor certifies treating the patient for this condition (especially on previous occasions) and the period of incapacity coincides with the requested leave period, you are fine backdating the leave.

Thanks so much for the feedback. Very helpful!