August 22, 2018
Author: Christine S. Keenan
Organization: The Kullman Firm
The Family and Medical Leave Act of 1993 (“FMLA”) became effective August 5, 1993, and applies to private sector employers who employ 50 or more employees in 20 or more calendar work weeks in the current or preceding calendar year, and who are engaged in commerce or any industry or activity effecting commerce. The latter standard includes joint and successor employers of covered employers.
Every employer should develop and incorporate in its personnel manual an FMLA policy governing how the company will apply the FMLA. There are several choices a company may make concerning matters such as the substitution of paid leave for unpaid leave, the calculation of the year to be used in assessing the amount of FMLA time available to employees, and the manner in which notification by employees of their intent to take leave should take place. This paper discusses the options available to employers, and attached are sample forms which are applicable to the recordkeeping and notice requirements of the FMLA.
A. Notices to Employees
Covered employers must provide the following information and notices (29 C.F.R. §§825.300, 825.301): (1) post notices on its premises in conspicuous places explaining the FMLA’s provisions and providing information concerning procedures for filing complaints for violations; and (2) if an employer maintains an employee handbook or any other written guidance to employees concerning employee benefits and leave rights, information concerning FMLA entitlements and employee obligations and the employer’s FMLA policy must be included in the handbook or other document; and (3) even if the employer does not publish written policies or handbooks, the employer nevertheless must give written guidance to employees concerning rights and obligations under FMLA whenever an employee requests leave under FMLA.
Upon receipt of an employee’s request for the need to take FMLA leave, the employer must provide the employees with written information, in a language understood by the employee, detailing the employee’s obligations and explaining any consequence of the employee’s failure to do so. The notice must include:
_ that the leave will be counted against the employee’s annual FMLA entitlement;
_ any requirement for a medical certification and consequence of failing to provide certification;
_ the employee’s right to substitute paid leave and whether the employer will require any substitution and any conditions related thereto;
_ any requirement to make premium payments to maintain health benefits, the arrangements for payments, and the consequence for failing to do so;
_ any requirement for a fitness-for-duty certificate;
_ the employee’s status as a “key employee” and its consequences;
_ the right to be returned to the same or equivalent position; and
_ potential liability for the employer’s share of health insurance premiums paid by the employer if the employee fails to return to work.
29 C.F.R. §825.301(b)(1).
Employers are required to provide the notice within one or two business days after receipt of the employee’s request. If the leave has begun, the notice must be mailed to the address of record. This notice must be given just once every six months, unless there is a change in information. 29 C.F.R. §825.301(c).
In the case of non-payment of insurance premiums by the employee, the employer must given employees written notice that they have not received such payments, and then must wait 15 days before any insurance coverage can be cancelled. 29 C.F.R. §825.212(a).
An employer must designate time off as FMLA leave when it knows the leave is for an FMLA qualifying reason. 29 C.F.R. §825.208(b). Oral designation must be given within one or two business days after the need for leave is given. Written confirmation that the time off counts as FMLA leave must be given by the next pay day, or if such is less than one week from the oral designation, then by the next pay day. A notation on the employee’s paycheck satisfies the written confirmation requirement. 29 C.F.R. §825.208(b)(2).
An employer must designate time off as FMLA leave each time an employee takes time off for a known FMLA reason. But, for intermittent leave or reduced schedule leave, only one notice is required. 29 C.F.R. §825.208(a).
An employer may not designate leave as FMLA leave after an employee has returned to work except in the following circumstances: (1) The employer did not learn the reason for the absence until the employee’s return; or (2) The employer made a preliminary designation that the leave qualifies under FMLA (and so notified the employee) pending receipt of requested medical certification/information. If an employer fails to timely designate leave as FMLA leave in the manner required by the regulations, the employee is still subject to the full protections of the Act but the absence cannot be counted towards the employee’s 12 week FMLA entitlement.
Proper notice can avoid lawsuits down the road. A community college faculty member whose employer failed to inform her that she had the right to leave under the FMLA can sue the college for interference with her FMLA rights. Reid-Falcone v. Luzerne County Cmty.
College, 10 WH Cases2d (BNA) 1221 (M.D. Pa. 2005). Employers are obligated to inform employees of their rights under the FMLA, and an employer who fails to provide such notice of rights commits interference by rendering them unable to exercise those rights in a meaningful way.
B. Employer Postings
All covered employers are required to post notices informing employees of their rights under the FMLA – regardless of whether any employees are eligible to take FMLA leave. The notice which summarizes the provisions of the FMLA must be posted prominently in the workplace, must be large enough to read easily, and must be in a language other than English if a significant portion of the employees are not literate in English. It is a $100.00 per offense fine if the employer fails to have the required posting. 29 C.F.R. §825.300(b). If an employer fails to post the notice, and an employee thereafter fails to give proper advance notice of an FMLA leave, the employer cannot take adverse action against the employee. 29 C.F.R. §825.300(b).
If a significant portion of the employer’s workforce is not literate in English, the employer must provide the notice in a language in which the employees are literate. 29 C.F.R. §825.300(c).
In Taylor . Invacare Corp., 8 WH Cases2d (BNA) 1472 (6th Cir. 2003), the court affirmed an award of $171,465.00 in favor of the employee, finding that the employer counted the employee’s FMLA leave in its decision to fire him for violating its “no-fault” attendance policy and that the employer failed to post the required FMLA information. The court concluded that although the employee failed to provide the requisite notice to the employer prior to taking leave to care for his wife, the employer had failed to post the FMLA notice which would have informed the employee of his rights – hence, the employer could not terminate the employee for failing to give notice prior to his leave.
In Dosakow v. New Rochelle Radiology Assoc., P.C., 274 F.3d 706 (2nd Cir. 2001), the court held that the employer was collaterally estopped from challenging the employee’s eligibility for FMLA leave because it failed to post the required FMLA notice.
However, failing to post the notice does not give right to a private right of action by the employee against the employer. Mullin v. Rochester Manpower, Inc., 204 F. Supp. 2d 556 (W.D. N.Y. 2002).
On February 6, 2013, the DOL published a final rule which expands and further defines the coverage of the FMLA, and requires employers to replace their current FMLA poster with a revised poster. In addition, the DOL has created a new FMLA form covering situations involving military veterans, and revised most of its existing FMLA certification, notification, and designation forms.
Once implemented, the final rule will result in modifications to certain portions of the existing FMLA regulations. Most of these changes result from the National Defense Authorization Act of Fiscal Year 2010, and include provisions implementing the major components of that law. In particular, the following matters are addressed in the revised regulations:
1. FMLA Caregiver Leave is expanded to include injuries and illnesses that existed prior to the Service member’s active duty, but were activated during the course of active duty.
2. FMLA Caregiver Leave is also expanded to cover family members of certain veterans with serious injuries or illnesses.
3. Specific definitions are provided for conditions that constitute a serious injury or illness for a Service member or veteran. The new regulations will also define who is a covered veteran, and allow private physicians outside of the military healthcare system to certify a serious injury or illness.
4. Qualifying Exigency Leave for eligible family members is increased from five (5) days to a maximum of fifteen (15) days.
5. Qualifying Exigency Leave is expanded to include eligible employees with family members serving in the U.S. Armed Forces outside of the United States.
6. Parental Care is added as a qualifying exigency and new definitions are added concerning what constitutes a qualifying exigency.
7. Clarifications are added on the calculation both of intermittent leave and reduced leave schedules.
The new regulations also implement the requirements of the Airline Flight Crew Technical Corrections Act. As its name suggests, this law establishes eligibility and calculation requirements for airline flight crew members, whose work schedules substantially deviate from those of most other occupations.
In addition to revising the FMLA poster, the DOL has created a new form designated as WH-385-V, Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave. It has also revised most of the existing FMLA certification, notification, and designation forms (specifically, WH-380-E, WH-380-F, WH-381, WH-382, WH-384, and WH-385).
Copies of the revised forms can be downloaded from the DOL website at www.dol.gov/whd/fmla/2013rule/militaryforms.htm. Copies of the revised poster can be downloaded at http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf.
C. Notices From Employees
An employee must provide “at least verbal notice [to the employer] sufficient to make the employer aware that the employee needs FMLA-qualifying leave.” 29 C.F.R. §825.302(c). The employee need not mention the FMLA by name. See Hammon v. DHL Airways, Inc., 165 F.3d 441, 451 (6th Cir. 1999). It is required that the employee provide both the need for leave and the reason for the leave.
Employers may require employees to provide the following:
_ medical certification supporting the need for leave due to a serious health condition (29 C.F.R. §825.305);
_ second or third medical opinion (at the employer’s expense) and periodic recertification (29 C.F.R. §825.307); and
_ periodic reports during FMLA leave regarding the employee’s status and intent to return to work (29 C.F.R. §825.308-309).
Certification will be considered sufficient if it identifies the health care provider, and includes (1) the approximate date on which the condition commended, (2) the probable duration of the condition, (3) all available and appropriate medical facts, (4) a general regimen of treatment, and (5) a statement that the employee is unable to perform one or more essential functions of the job or is needed to care for a child, spouse or parent. A diagnosis is not required. 29 C.F.R. §825.306.
The timeframe by which the employee must provide the employer this notice depends upon the foreseeability of leave. The Regulations provide that the employee must give the employer notice of a leave “as soon as practicable” under the facts and circumstances of the particular case. 29 C.F.R. §825.302. Compare this provision with the language in the Act, which mandates that an employee must “provide the employer with not less than 30 days’ notice, before the date the leave is to begin” where the leave is foreseeable. 29 U.S.C. §2612(e)(2)(B).
In cases where the leave is based upon a planned medical treatment, the employee must make a “reasonable effort” to schedule the treatment so as not to unduly disrupt the operations of the employer. 29 U.S.C. §2612(e)(2)(A). The employee is also to provide the employer with 30-days advanced notice of the leave – unless the leave is to begin within the 30-days, then the employee can simply provide the employer with notice as is practical under the circumstances. 29 U.S.C. §2612(e)(2)(B).
29 C.F.R. §825.302 – Employee Notice Requirements
(a) An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. For example, an employee’s health condition may require leave to commence earlier than anticipated before the birth of a child. Similarly, little opportunity for notice may be given before placement for adoption. Whether the leave is to be continuous or is to be taken intermittently or on a reduced schedule basis, notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.
(b) “As soon as practicable” means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. For foreseeable leave where it is not possible to give as much as 30 days notice, “as soon as practicable” ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.
(c) An employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave (see Sec. 825.305).
(d) An employer may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave. For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. However, failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice.
(e) When planning medical treatment, the employee must consult with the employer and make a reasonable effort to schedule the leave so as not to disrupt unduly the employer’s operations, subject to the approval of the health care provider. Employees are ordinarily expected to consult with their employers prior to the scheduling of treatment in order to work out a treatment schedule which best suits the needs of both the employer and the employee. If an employee who provides notice of the need to take FMLA leave on an intermittent basis for planned medical treatment neglects to consult with the employer to make a reasonable attempt to arrange the schedule of treatments so as not to unduly disrupt the employer’s operations, the employer may initiate discussions with the employee and require the employee to attempt to make such arrangements, subject to the approval of the health care provider.
(f) In the case of intermittent leave or leave on a reduced leave schedule which is medically necessary, an employee shall advise the employer, upon request, of the reasons why the intermittent/reduced leave schedule is necessary and of the schedule for treatment, if applicable. The employee and employer shall attempt to work out a schedule which meets the employee's needs without unduly disrupting the employer’s operations, subject to the approval of the health care provider.
(g) An employer may waive employees’ FMLA notice requirements. In addition, an employer may not require compliance with stricter FMLA notice requirements where the provisions of a collective bargaining agreement, State law, or applicable leave plan allow less advance notice to the employer. For example, if an employee (or employer) elects to substitute paid vacation leave for unpaid FMLA leave (see Sec. 825.207), and the employer’s paid vacation leave plan imposes no prior notification requirements for taking such vacation leave, no advance notice may be required for the FMLA leave taken in these circumstances. On the other hand, FMLA notice requirements would apply to a period of unpaid FMLA leave, unless the employer imposes lesser notice requirements on employees taking leave without pay.
29 C.F.R. §825.303 – When Leave is Not Foreseeable
(a) When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved.
(b) The employee should provide notice to the employer either in person or by telephone, telegraph, facsimile (“fax”) machine or other electronic means. Notice may be given by the employee’s spokesperson (e.g., spouse, adult family member or other responsible party) if the employee is unable to do so personally. The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed. The employer will be expected to obtain any additional required information through informal means. The employee or spokesperson will be expected to provide more information when it can readily be accomplished as a practical matter, taking into consideration the exigencies of the situation.
29 C.F.R. §825.304 – Recourse for Employees Failing to Give Notice
(a) An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements.
(b) If an employee fails to give 30 days notice for foreseeable leave with no reasonable excuse for the delay, the employer may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice to the employer of the need for FMLA leave.
(c) In all cases, in order for the onset of an employee’s FMLA leave to be delayed due to lack of required notice, it must be clear that the employee had actual notice of the FMLA notice requirements. This condition would be satisfied by the employer’s proper posting of the required notice at the worksite where the employee is employed. Furthermore, the need for leave and the approximate date leave would be taken must have been clearly foreseeable to the employee 30 days in advance of the leave. For example, knowledge that an employee would receive a telephone call about the availability of a child for adoption at some unknown point in the future would not be sufficient.
In Cruz v. Publix Supermarkets, 10 WH Cases2d (BNA) 1770 (11th Cir. 2005), an employee requested leave to help her daughter during childbirth. The court held that the employee failed to give the employer notice of any condition that would qualify as FMLA leave. Pregnancy is not a serious condition, unless complications occur. The employee’s notice that her daughter was in labor and her son-in-law had broken his collarbone was insufficient notice for leave under the FMLA.
An automobile company’s employee failed to given proper notice regarding his need for leave under the FMLA; hence, he was not protected by the Act. Woods v. DaimlerChrysler Corp., 10 WH Cases2d (BNA) 1057 (8th Cir. 2005). The employee reported that he was “stressed” and needed time off. Simply advising the employer that he was “stressed” and needed time off is not the necessary level of notice to trigger protection under the FMLA, the court held. The company had given him numerous opportunities to properly submit the documentation, but the employee failed to do so. Therefore, he was not protected by the FMLA when he was terminated for excessive absences.
Also, simply calling in sick is generally insufficient notice of a need for FMLA leave. In Walton v. Ford Motor Co., No. 04-1471 (6th Cir. 09/28/05), the employee only notified the company’s security office that he was not coming to work because he was “sick.” Even though he had twisted his knee and was scheduled to see an orthopedic surgeon, he failed to notify his employer of his status. He never notified his supervisors of the doctor’s appointment or that he needed medical time off. He never provided any notes or excuses from his doctor. An employee’s statement that he is “sick” is insufficient to apprise the employer that the employee may have a serious health condition.
In Urban v. Dolgencorp of Texas, 10 WH Cases2d 237 (5th Cir. 2004), the court held that an employer did not violate the FMLA when it discharged an employee who had failed to provide medical certification within a specified deadline. Even though the FMLA has a provision wherein an employee can cure any defects in notice, the curing provision does not apply when the employee fails to submit any medical certifications altogether. It should be noted that the employer not only gave the employee longer than the 15-days required by the regulations (29 C.F.R. §825.305(b)).
D. Written Policies and Procedures
Covered employers that have employees who are eligible for FMLA leave and that provide written guidance to employees by way of employee handbooks and the like must include information on the FMLA in such written policies. 29 C.F.R. §825.301(a)(1). An employee cannot justify his failure to follow the procedures outlined in the FMLA, where the employer posted a notice of the FMLA’s provisions in the breakroom, the employer’s handbook discussed the provisions, and the employer held risk management sessions outlining the FMLA as well. In addition, this employee also received FMLA information during a previous FMLA leave as well. Kaylor v. Fannin Regional Hospital, 946 F. Supp 988 [3 WH Cases 2d 1856] (N.D. Ga. 1996). So, sufficient notice is important.
The DOL’s “Fact Sheet #28” satisfies the written guidance requirement. 29 C.F.R. §825.301(a)(2).
E. Other Recordkeeping Issues
Employers are required to maintain a number of records in order to comply with the FMLA. Records must be kept for three (3) years, but do not have to be provided to the Department of Labor unless requested. 29 C.F.R. §825.500. Records required under the FMLA are basically the same as those needed to comply with the Fair Labor Standards Act:
_ basic payroll records
_ employee identification data (name, address and position)
_ rate of pay or basis of compensation
_ days and hours worked
_ deductions from wages
_ total compensation
Specifically, the FMLA requires employers to maintain the following:
- dates FMLA leave was taken (or hours taken if less than a full day);
- copies of employee notices of leave furnished to the employer and
copies of all general and specific notices given to employees under the FMLA;
- documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leave;
- premium payments for employee benefits; and
- records of any disputes between the employer and an employee regarding designation of leave as FMLA leave (including the employer and employee statements and reasons, if any).
As with the Americans with Disabilities Act, medical records created for purposes of FMLA leave must be maintained as confidential medical records in separate files.
Where an employer fails to maintain accurate records of hours worked such to establish eligibility for FMLA leave, the employee’s eligibility will be presumed. 29 C.F.R. §825.110(c). This presumption also applies to employees who are exempt from the FLSA recordkeeping requirements. An employer can overcome this presumption by clearly establishing that the employee did not work 1,250 hours during the previous 12 months. Rich v. Delta Air Lines, Inc., 921 F. Supp. 767 [3 WH Cases 2d 161] (N.D. Ga. 1996).
A penalty of $100 per each offense can be levied against employers who fail to comply with the posting requirements. 29 C.F.R. §825.300. If an employer has not properly made the postings required by the FMLA, it may be estopped from asserting that the employee failed to furnish proper advance notice. Hendry v. GTE North, Inc., 896 F. Supp. 816 [3 WH Cases 2d 138] (N.D. Ind. 1995). However the employee cannot recover damages for such, as only the labor secretary has standing to bring a cause of action for civil monetary penalties. Id.; see also, Sherry v. Protection, Inc., 4 WH Cases 2d 463 (N.D. Ill. 1997) (employer who fails to provide written guidance concerning employee rights and obligations under the FMLA cannot take action against the employee for failing to comply with the notice provisions of the FMLA).
G. Failing to Designate Leave as FMLA
The Regulations provide that an employer who knew that an employee’s leave of absence was for an FMLA-leave qualifying reason, but failed to designate the time off as FMLA leave violates the Act. 29 C.F.R. §825.208(c); 29 C.F.R. §700(a).
29 C.F. R. 825.208: Under what circumstances may an employer designate leave, paid or unpaid, as FMLA leave and, as a result, count it against the employee’s total
(a) In all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section. In the case of intermittent leave or leave on a reduced schedule, only one such notice is required unless the circumstances regarding the leave have changed. The employer’s designation decision must be based only on information received from the employee or the employee's spokesperson (e.g., if the employee is incapacitated, the employee's spouse, adult child, parent, doctor, etc., may provide notice to the employer of the need to take FMLA leave). In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of paid leave, the employer should inquire further of the employee or the spokesperson to ascertain whether the paid leave is potentially FMLAqualifying.
(1) An employee giving notice of the need for unpaid FMLA leave must explain the reasons for the needed leave so as to allow the employer to determine that the leave qualifies under the Act. If the employee fails to explain the reasons, leave may be denied. In many cases, in explaining the reasons for a request to use paid leave, especially when the need for the leave was unexpected or unforeseen, an employee will provide sufficient information for the employer to designate the paid leave as FMLA leave. An employee using accrued paid leave, especially vacation or personal leave, may in some cases not spontaneously explain the reasons or their plans for using their accrued leave.
(2) As noted in Sec. 825.302(c), an employee giving notice of the need for unpaid FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave. An employee requesting or notifying the employer of an intent to use accrued paid leave, even if for a purpose covered by FMLA, would not need to assert such right either. However, if an employee requesting to use paid leave for an FMLA qualifying purpose does not explain the reason for the leave -- consistent with the employer's established policy or practice -- and the employer denies the employee’s request, the employee will need to provide sufficient information to establish an FMLA-qualifying reason for the needed leave so that the employer is aware of the employee’s entitlement (i.e., that the leave may not be denied) and, then, may designate that the paid leave be appropriately counted against (substituted for) the employee’s 12-week entitlement. Similarly, an employee using accrued paid vacation leave who seeks an extension of unpaid leave for an FMLA-qualifying purpose will need to state the reason. If this is due to an event which occurred during the period of paid leave, the employer may count the leave used after the FMLA-qualifying event against the employee's 12-week entitlement.
(b)(1) Once the employer has acquired knowledge that the leave is being taken for an FMLA required reason, the employer must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave. If there is a dispute between an employer and an employee as to whether paid leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employer. Such discussions and the decision must be documented. (2) The employer’s notice to the employee that the leave has been designated as FMLA leave may be orally or in writing. If the notice is oral, it shall be confirmed in writing, no later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be no later than the subsequent payday). The written notice may be in any form, including a notation on the employee’s pay stub.
(c) If the employer requires paid leave to be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, this decision must be made by the employer within two business days of the time the employee gives notice of the need for leave, or, where the employer does not initially have sufficient information to make a determination, when the employer determines that the leave qualifies as FMLA leave if this happens later. The employer's designation must be made before the leave starts, unless the employer does not have sufficient information as to the employee’s reason for taking the leave until after the leave commenced. If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave (and so notify the employee in accordance with paragraph (b)), the employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee’s 12-week FMLA leave entitlement.
(d) If the employer learns that leave is for an FMLA purpose after leave has begun, such as when an employee gives notice of the need for an extension of the paid leave with unpaid FMLA leave, the entire or some portion of the paid leave period may be retroactively counted as FMLA leave, to the extent that the leave period qualified as FMLA leave. For example, an employee is granted two weeks paid vacation leave for a skiing trip. In mid-week of the second week, the employee contacts the employer for an extension of leave as unpaid leave and advises that at the beginning of the second week of paid vacation leave the employee suffered a severe accident requiring hospitalization. The employer may notify the employee that both the extension and the second week of paid vacation leave (from the date of the injury) is designated as FMLA leave. On the other hand, when the employee takes sick leave that turns into a serious health condition (e.g., bronchitis that turns into bronchial pneumonia) and the employee gives notice of the need for an extension of leave, the entire period of the serious health condition may be counted as FMLA leave.
(e) Employers may not designate leave as FMLA leave after the employee has returned to work with two exceptions:
(1) If the employee was absent for an FMLA reason and the employer did not learn the reason for the absence until the employee’s return (e.g., where the employee was absent for only a brief period), the employer may, upon the employee's return to work, promptly (within two business days of the employee’s return to work) designate the leave retroactively with appropriate notice to the employee. If leave is taken for an FMLA reason but the employer was not aware of the reason, and the employee desires that the leave be counted as FMLA leave, the employee must notify the employer within two business days of returning to work of the reason for the leave. In the absence of such timely notification by the employee, the employee may not subsequently assert FMLA protections for the absence.
(2) If the employer knows the reason for the leave but has not been able to confirm that the leave qualifies under FMLA, or where the employer has requested medical certification which has not yet been received or the parties are in the process of obtaining a second or third medical opinion, the employer should make a preliminary designation, and so notify the employee, at the time leave begins, or as soon as the reason for the leave becomes known. Upon receipt of the requisite information from the employee or of the medical certification which confirms the leave is for an FMLA reason, the preliminary designation becomes final. If the medical certifications fail to confirm that the reason for the absence was an FMLA reason, the employer must withdraw the designation (with written notice to the employee). [60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
In a case that had the potential of punishing the employer who tried to do more than the requirements of the law, the U. S. Supreme Court held in Ragsdale v. Wolverine World Wide, Inc., No. 00-6029 (03/19/02) that the Department of Labor’s requirement that employers notify employees that their leave constituted FMLA leave was contrary to the intent of the FMLA. Tracy Ragsdale sought leave under Wolverine’s leave of absence policy, when cancer kept her out. The employer granted Ragsdale 30 weeks of leave, but failed to notify her that the leave of absence would constitute the 12 weeks of leave mandated by the Family and Medical Leave Act. Under DOL’s regulation, 29 C.F.R. §825.700(a), an employer cannot count any used leave that would otherwise constitute FMLA leave if the employer did not notify the employee that the leave counted as FMLA leave. Hence, Ragsdale insisted that Wolverine grant her another 12 weeks of leave.
As long as an employer’s policy meets (or exceeds) the FMLA’s minimum requirements, leave taken may be counted toward the 12 weeks guaranteed by the FMLA, according to the U. S. Supreme Court. The Court did not hold that an employer is relieved of the notice obligation. The penalty provision (granting another 12-week leave) may be appropriate where the failure to give the notice interfered with the employee’s exercise of her right to take leave or intermittent leave. In this case, Ragsdale failed to establish that she would have taken less leave or intermittent leave is she had received the required notice. Therefore, the employer was not obligated to provide the employee with another 12 weeks of
Subsequent to Ragsdale, in Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135 (3rd Cir. 2004), the court held that the employer’s failure to timely inform the employee that his medical absence to recover from a car accident was covered under the FMLA constituted interference with the employee’s FMLA rights. Although the employee never specifically asked for FMLA leave until his termination, the court found that he only asked on recommendation from his union and not that he understood his rights under the Act. Further, the evidence showed that the employee may have made different decisions regarding treatment and surgery had he known he was only entitled to 12-weeks of leave – about which the employer had failed to give notice.
In Felder v. Winn-Dixie La., Inc., 9 WH Cases2d (BNA) 585 (E.D. La. 2003), the court held that the employee was not entitled to reinstatement or any other remedy under the FMLA because her employer failed to timely designate her maternity leave as FMLA leave. The employee could not show that any relief could be granted pursuant to Act under any set of facts in the case. She relied upon the DOL regulations, which provide that it is employer’s responsibility to designate paid or unpaid leave as FMLA-qualifying and to give notice of the designation to the employee. Citing Ragsdale, the court held that the employee’s argument that any lack of notice entitled her to remain eligible for FMLA benefits after expiration of her 12 weeks of FMLA leave was in error, particularly since Ragsdale struck down the Regulation that punishes employers for failing to provide timely notice of a FMLA designation by denying the employer any credit for leave granted before the notice was given, which is very remedy that the employee was trying to use. Even if the employer violated general-notice provisions in the Regulations that required the employer to advise the employee generally of her rights and obligations under Act, the only available statutory penalty for such a violation is for Secretary of Labor to impose fine.
If an employer knows a leave qualifies for FMLA-type leave but does not do so, no retroactive designation may be made regardless of whether the employee is still on leave or has returned, and the leave may not be counted against the employee’s 12-week entitlement under the FMLA. If the employer learns that a leave is for a FMLA-qualifying reason after the leave has begun and the employee is still on leave, that portion of the leave that qualifies as FMLA leave may be retroactively designated. 29 C.F.R. §825.208(d). If an employer learns that leave was for a FMLA-qualifying reason after the employee has returned to work, the employer can retroactively designate the leave as a FMLA leave, if the employer does so within two business days of the employee returning to work. 29 C.F.R. §825.208(e)(1). And, if the employer never learns that the leave is for a FMLA-qualifying reason but the leave was for a FMLA purpose, the employee must notify the employer within two (2) business days of returning to work – then the leave can be applied retroactively as FMLA leave. Id. If the employee fails to do so, he/she has no FMLA protection for the absence. Id.
Therefore, it would be prudent to make a preliminary designation of a leave as FMLAtype leave pursuant to §825.208(e)(2) pending medical confirmation.