Retroactive FMLA Leave Designation: Proceed with Caution!

If an employer fails to tell an employee that leave has been designated as FMLA leave, can the employer count the leave against the employee’s FMLA leave entitlement?

The new FMLA regulations reflect a change in DOL’s position. The designation provisions now comply with the U.S. Supreme Court’s decision in Ragsdale v. Wolverine World Wide, Inc. (535 U.S. 81 (2002)). Ragsdale ruled that a “categorical” penalty for failure to appropriately designate FMLA leave was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement to demonstrate individual harm.

Under the new FMLA regulations, retroactive designation is permitted if an employer fails to timely designate leave as FMLA leave (and notify the employee of the designation). The employer may be liable; however, if the employee can show that he or she has suffered harm or injury as a result of the failure to timely designate the leave as FMLA. Additionally, an employee and employer may agree to retroactively designate an absence as FMLA-protected.

Examples Highlight FMLA Leave for a Family Member

In its FMLA FAQs, DOL provides the following example of whether retroactive designation of FMLA leave would be allowed:

Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. However, earlier in the leave year, Henry took 2 weeks of annual leave to care for his mother following her hospitalization for a serious health condition. Henry’s employer failed to notify him at the time of his mother’s hospitalization that the time he spent caring for his mother would be counted as FMLA leave. If Henry can establish that he would have made other arrangements for the care of his mother if he had known that the time would be counted against his FMLA entitlement, the 2 weeks his employer failed to appropriately designate may not count against his FMLA entitlement.

The FMLA regulations also address the issue of how retroactive designation could cause “harm or injury” to an employee. Specifically, the regulations state:

“If an employer that was put on notice that an employee needed FMLA leave failed to designate the leave properly, but the employee’s own serious health condition prevented him or her from returning to work during that time period, regardless of the designation, an employee may not be able to show that the employee suffered harm as a result of the employer’s actions.

However, if an employee took leave to provide care for a son or daughter with a serious health condition believing it would not count toward his or her FMLA entitlement, and the employee planned to later use that FMLA leave to provide care for a spouse who would need assistance when recovering from surgery planned for a later date, the employee may be able to show that harm has occurred as a result of the employer’s failure to designate properly. The employee might establish this by showing that he or she would have arranged for an alternative caregiver for the seriously ill son or daughter if the leave had been designated timely” (29 CFR 825. 301).

Follow the FMLA Designation Rules

So, it would appear that the “harm or injury” provision is most commonly applicable in situations where the employee is caring for a covered family member, rather than for his or her own serious health condition. As a result, employers should be especially cautious when considering leave requests to care for seriously ill family members and follow the specific rules and timetables for FMLA leave designation.
Those rules are:

• An employer must notify an employee whether leave will be designated as FMLA leave within 5 business days of learning that the leave is being taken for a FMLA-qualifying reason, absent extenuating circumstances.

• The designation notice must also state whether paid leave will be substituted for unpaid FMLA leave and whether the employer will require the employee to provide a fitness-for-duty certification to return to work (unless a handbook or other written document clearly provides that such certification will be required in specific circumstances, in which case the employer may provide oral notice of this requirement).

• If the amount of leave needed is known, an employer must inform an employee of the number of hours, days, or weeks that will be counted against the employee’s FMLA leave entitlement in the designation notice. Where it is not possible to provide the number of hours, days, or weeks that will be counted as FMLA leave in the designation notice (e.g., where the leave will be unscheduled), an employer must provide this information upon request by the employee, but no more often than every 30 days and only if leave was taken during that period.