(a) Employer responsibilities. The employer's decision to designate
leave as FMLA-qualifying 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 leave, the employer should
inquire further of the employee or the spokesperson to ascertain whether
leave is potentially FMLA-qualifying. Once the employer has acquired
knowledge that the leave is being taken for a FMLA-qualifying reason,
the employer must notify the employee as provided in Sec. 825.300(d).
(b) Employee responsibilities. An employee giving notice of the
need for 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 and otherwise satisfy the notice requirements set
forth in Sec. 825.302 or Sec. 825.303 depending on whether the need
for leave is foreseeable or unforeseeable. An employee giving notice of
the need for FMLA leave must explain the reasons for the needed leave
so as to allow the employer to determine whether 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 leave, especially when the need for the leave was unexpected or
unforeseen, an employee will provide sufficient information for the
employer to designate the leave as FMLA leave. An employee using
accrued paid leave may in some cases not spontaneously explain the
reasons or their plans for using their accrued leave. However, if an
employee requesting to use paid leave for a FMLA-qualifying reason does
not explain the reason for the leave and the employer denies the
employee's request, the employee will need to provide sufficient
information to establish a FMLA-qualifying reason for the needed leave
so that the employer is aware that the leave may not be denied and may
designate that the paid leave be appropriately counted against
(substituted for) the employee's FMLA leave entitlement. Similarly, an
employee using accrued paid vacation leave who seeks an extension of
unpaid leave for a FMLA-qualifying reason 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 reason against the employee's FMLA leave entitlement.
(c) Disputes. 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.
Such discussions and the decision must be documented.
(d) Retroactive designation. If an employer does not designate
leave as required by Sec. 825.300, the employer may retroactively
designate leave as FMLA leave with appropriate notice to the employee
as required by Sec. 825.300 provided that the employer's failure to
timely designate leave 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.
(e) Remedies. If an employer's failure to timely designate leave in
accordance with Sec. 825.300 causes the employee to suffer harm, it
may constitute an 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 by reason 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 (see Sec. 825.400(c)). For example, 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.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68097, Nov. 17, 2008]
