When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within 5 business days, absent extenuating circumstances.
The employer is always responsible for designating leave as FMLA-qualifying and for giving notice of the designation to the employee.
Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave.
Note: If there is a dispute between an employer and an employee as to whether leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. The discussions and decision must be documented.
Content of Designation Notice
If an employer has determined that leave is FMLA-qualifying, the designation notice (which must be in writing) must include:
- Statement that leave is being designated as FMLA leave;
- Amount of leave being counted as FMLA leave, if known;
- Whether paid-time-off benefits will be used during leave and if so, that paid leave will count as FMLA leave;
- Whether a fitness-for-duty certification will be required; and
- Whether a list or job description of essential duties is attached for the employee’s healthcare practitioner to use for fitness for duty certification.
For most employers, the easiest way to comply is to complete and deliver DOL’s Designation Notice to Employee of FMLA Leave (Form WH-382). This will satisfy all regulatory requirements for the notice of designation.
If the leave is not designated as FMLA leave because it does not meet the requirements of the law, the notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement. However, the same DOL form (Form WH-382) can also be used to serve this purpose.
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Change of Designation Status
If the information provided by the employer to the employee in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), the employer must provide written notice of the change within 5 business days of receipt of the employee’s first notice of need for leave subsequent to any change.
Failure of Employer to Provide Notice
Under the new 2009 FMLA regulations, if an employer does not designate leave as required, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee, provided that the employer’s failure to designate leave in a timely manner does not cause harm or injury to the employee.
In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.
Regarding the “harm or injury to the employee” standard, the DOL provides the following example:
Henry plans to take 12 weeks of FMLA leave beginning in August for the birth of his second child. Earlier in the leave year, however, 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.
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Penalties for Failing to Designate
If an employer fails to timely designate and causes the employee to suffer harm, the DOL states that the employer may be liable for “interference with, restraint of, or denial of” the exercise of an employee’s FMLA rights. An employer may be liable for compensation and benefits lost as a result of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.
In other words, pay careful attention to your designation procedures.
In tomorrow’s Advisor, what to do about mistaken designations, plus an introduction to the “FMLA Bible.”