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Who is responsible for designating leave as leave
eligible for the protection provided under the Family and Medical Leave Act?
Simply stated, the employer has full responsibility for designating leave, paid
or unpaid, as FMLA qualifying leave, and for telling the employee. That doesn't
mean, however, that the employer has the right to indiscriminately designate
just any leave as FMLA leave. The reason for the time away must meet the
requirements for eligibility under the Act. Let's jump right in to this pile of
leaves and see what we find.
The decision to designate leave as FMLA leave must be
based entirely on information provided by the employee or the employee's
spokesperson. In situations where the employee is incapacitated, the employee's
spouse, adult child, parent, physician, or other person with authority to speak
for the employee may provide information.
Oftentimes an employee asks for leave but he offers
little explanation about why he needs time off. If the employer feels that the
reason for the leave would qualify as FMLA eligible, whether the request is for
paid or unpaid leave, the employer should inquire further into the nature of the
leave.
If an employee gives notice of the need for paid or
unpaid time off and provides enough information to show that it qualifies as
FMLA
leave, the employee does not have to assert his or her
rights under the FMLA, or even mention the FMLA, to meet the obligation to
provide notice. On the other hand, the employee bears the responsibility to
explain the reasons for the time away to the extent that the employer can
determine if it is eligible under FMLA. If the employee fails to provide enough
information for such a determination, the leave may be denied.
When the employer learns that paid leave is being taken
for an FMLA qualifying reason, the employer must notify the employee within two
business days (provided that there are no extenuating circumstances) that the
leave has been designated as FMLA leave. This notice may be given verbally or in
writing. If the notice is given verbally, written notice must be provided to the
employee no later than the following payday. If the following payday is less
than one week away, the written notice must be given by the subsequent payday.
This written notice may be in any form, including a notation on the employee's
pay stub.
An employer can require an employee to use appropriate
earned paid leave, or the employee may elect to use the paid leave, prior to
using unpaid FMLA leave. Both the paid and unpaid leave can count against the
employee's 12-week FMLA entitlement.
Where the employer requires the employee to use paid
leave prior to going on unpaid leave, the employer must notify the employee,
within two business days of the time the employee gives notice of the need for
leave, that the paid leave will be counted as FMLA leave. If the employer does
not have sufficient information to determine if the leave will be for FMLA
purposes, then the employee must be notified when the employer is able to make a
determination later. Except in situations where an employer does not have
sufficient information to determine if the leave qualifies as FMLA leave, the
employer must designate the leave as FMLA leave before the leave starts.
Once an employer has sufficient information that
requested paid leave is for FMLA purposes, the employer must notify the employee
that the leave will be counted as FMLA leave at the time the information is
received or prior to the start of the leave. If the employer fails to provide
such notice, the employer cannot retroactively designate any of the leave as
FMLA leave. The employer may only designate any qualifying leave as FMLA after
the employee is notified. However, the employee has full protection under the
FMLA for any qualifying leave taken prior to being notified by the employer that
it will be counted as FMLA leave.
In some cases, an employer may not learn that leave
qualifies as FMLA leave until after the leave has begun. In these situations,
the amount of the leave period that qualifies may be retroactively counted as
FMLA leave. An example might be an employee who is injured or becomes seriously
ill while on vacation. The employer may learn of the situation when the employee
asks for an extension of leave. In this case, the full period from the date of
the injury or the onset of the illness can be counted as FMLA leave. Another
example would be an employee who takes sick leave for an illness that would not
qualify as a "serious health condition" under FMLA but, because of
complications, it later meets that designation. In this case, the period of
illness that qualifies as a serious health condition can be counted against the
employee's 12-week leave entitlement.
As a general rule, employers may not designate leave as
FMLA leave after the employer has returned to work. The two exceptions are:
- The employee was absent for an FMLA reason and the employer did not
learn of the reason until after the employee returned to work. The employer
may, within two business days of the employee's return to work,
retroactively designate the leave as FMLA leave provided that proper notice
is given to the employee. Also, if the employee returns to work and wants to
designate the leave as being taken for an FMLA reason, the employee must
notify the employer within two business days of returning to work of the
reason for the leave. If the employee fails to notify the employer in a
timely manner, the employee cannot later claim FMLA protections for the
absence.
- The employer knows the reason for the leave but has not been able to
confirm that the leave qualifies as FMLA, or the employer has requested
medical certification which has not been received, or the employee and
employee are in the process of obtaining a second or third medical opinion.
In this situation, the employer should make, and notify the employee of, a
preliminary designation of FMLA leave. When sufficient information is
obtained to determine that the leave qualifies as FMLA leave, the
preliminary desig-nation becomes final. If the medical certifications or
other information fail to confirm that the absence was for an FMLA reason,
the employer must withdraw the designation and notify the employee in
writing of the withdrawal.
It is important to remember that the responsibility of
designating qualifying leave as FMLA leave is totally the responsibility of the
employer. If the employer knows that an employee is absent for an FMLA
qualifying reason, the employer cannot deny the leave, nor fail to provide the
protections under the FMLA to the employee, even though the employee has never
asked for or asserted his or her rights. Even though an employer does not
designate qualifying FMLA leave as such, an employee's rights under the FMLA are
still protected.
![[FMLA tree]](FMLAtree.GIF)
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