FMLA leave entitlement?
(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
FMLA-qualifying.
(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]
