Yesterday, we looked at the first three phases of family leave notice you’re required to provide your employees under the FMLA guidelines. Today, the fourth, plus an introduction to a comprehensive, fully updated resource on leaves — specifically for California employers — you’ll turn to again and again.
4. Designation Notice
Once the employer has enough information to determine whether the leave is for an FMLA-qualifying reason (for example, after receiving a certification), the employer must provide a designation notice informing the employee whether the leave will be counted as FMLA leave within five business days, unless there are extenuating circumstances.
A comprehensive family leave resource for California employers — fully updated!
This designation notice may be provided at the same time as the eligibility notice — right after the employee requests leave — if the employer already knows the leave qualifies under FMLA.
Retroactive designation notice is permitted if the employer hasn’t provided timely notice and the notice delay won’t harm the employee. And, employers and employees can always agree to retroactively designate FMLA leave.
If applicable, the designation notice must also state:
- any reason that the leave is not designated as FMLA leave, such as insufficient information or a nonqualifying reason;
- the employer’s requirement that paid leave be substituted for unpaid leave;
- the requirement that the employee present a fitness-for-duty certification before being reinstated along with a list of essential job functions for the employee’s position.
The rules state that an employer that doesn’t provide the required notices may be held liable for lost compensation, benefits, and other consequences if the employee can show
that he or she has been personally harmed as a result of not receiving any notice.
Although an employer can retroactively designate FMLA leave, if an employee suffers harm because he or she didn’t receive timely notices, the employer can nonetheless be liable for any damages incurred by the employee.
Don’t hazard a guess on tricky leave questions: Be sure with our comprehensive report, How To Comply with California and Federal Leave Laws — newly updated!
California Note
California’s family leave law imposes a separate notice-posting requirement. Call the California Fair Employment and Housing Commission at (415) 557-2325 for a copy of the notice, or go online and download form DFEH-100-21.
In addition, California requires employers to revise their handbooks so that their leave policies conform to California and federal leave regulations.
All your leave-related questions answered!
ERI’s newly updated HR Management & Compliance Report, How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional.
This information-packed 122-page guide, written by an experienced California employment lawyer, features in-depth coverage of all the topics you need to know about in an easy-read, quick-reference style:
- Overview of California and federal leave laws
- Pregnancy and parental leaves
- Required notices
- Employee notifications of illness, injury, or disability
- Responding to leave requests
- Computing leave entitlement duration
- Medical exams and inquiries
- Reinstating and terminating employees
- Leave for military members’ families
- Avoiding leave-related bias claims
- And much more!
- Get more info, or order today!
Download your free copy of Compliance Guide to the Federal Family and Medical Leave Act and the California Family Rights Act today!
Don’t forget that there are some federal forms relating to leave (including WH-380E and WH-380F) that you should NEVER use for employees in California, as they request information you’re not allowed to ask for under state law.
Don’t forget that there are some federal forms relating to leave (including WH-380E and WH-380F) that you should NEVER use for employees in California, as they request information you’re not allowed to ask for under state law.
Such a employer trap, those federal employee leave forms.
Such a employer trap, those federal employee leave forms.