Leave It to the Employer: Navigating FMLA Designation Rules

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Employees take time off work for a variety of reasons, some of which may trigger use of FMLA leave—even when an employee does not request FMLA leave. Employers should be cognizant of the circumstances under which they have a duty to inform employees that their time off may be protected by the Family Medical Leave Act.

FMLA Leave—the Basics.

The Family Medical Leave Act (FMLA) is a federal law that allows eligible employees to take unpaid, job protected leave for specified family and medical reasons. Employees are eligible for FMLA leave if an employer has 50 or more employees within a 75-mile radius and the employee has worked for the employer for at least 12 months and worked at least 1,250 hours in the past year. Eligible employees are entitled to 12-weeks of leave in a 12-month period, with some exceptions. FMLA leave can be taken only under certain circumstances: for the birth and care of a newborn child, placement of a child for adoption or foster care, to care for a family member with a serious health condition, or for the employee's own serious health condition. When an employee takes FMLA leave, they are entitled to return to their same or an equivalent job after leave.

When Should Employers Designate Leave as Protected Under the FMLA?

If an employer has reason to believe an employee’s absence or need for time off is FMLA-qualifying, the employer is responsible for designating the leave as FMLA protected. 29 CFR § 825.300(d)(1). In some circumstances, it may be easier to discern whether an employee’s time off request qualifies as FMLA leave. For example, a new mother’s request for time off to care her newborn child would likely entitle her to FMLA leave. But does an employee’s request for time off for a surgical procedure qualify as a “serious health condition” under the FMLA? The answer is, maybe.

In order to appropriately evaluate whether an employee’s time off for medical needs triggers the FMLA, employers should have a thorough understanding of how the FMLA defines “serious medical condition.”

• The FMLA defines serious health condition as an illness, injury, impairment or physical or mental condition that involves inpatient care or continuing medical treatment. 29 CFR § 825.113(a).
• The FMLA defines inpatient care as an overnight stay in a hospital, hospice, or residential medical facility or any subsequent treatment related to the inpatient care. 29 CFR § 825.114
• Continuing medical treatment includes incapacitation for three consecutive, full calendar days and any subsequent treatment or period of incapacity related to the same condition, as outlined in 29 CFR § 825.115.
• An employee is considered incapacitated if they are unable to work, attend school, or perform other regular daily activities due to their serious health condition, treatment for their serious health condition or recovery therefrom. 29 CFR § 825.113(b).

Once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave. 29 CFR § 825.220(d).

An Employee May Be Eligible – What’s Next?

Once an employer has reason to believe an employee may be entitled to FMLA leave, employers are required to comply with the FMLA’s notice requirements.

1. Eligibility Notice: Employers are required to provide employees with an eligibility notice the first time the employee requests leave for an FMLA-qualifying reason (or when the employer becomes aware that an employee’s leave may be for an FMLA-qualifying reason) in the employer's designated 12-month leave year. The eligibility notice should include:

• Be provided within five business days of the employee’s initial request for leave or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason,
• Be provided in a language in which the employee is literate, if a significant portion of the employer's workforce is not literate in English,
• Inform the employee of his or her eligibility status, and
• If the employee is not eligible for FMLA leave, state at least one reason why.

Once an employee is notified of their eligibility status, employers are not required to provide a new eligibility notice for FMLA absences for the same or different qualifying reason during the same leave year, so long as the employee’s eligibility status remains the same. However, if an employee needs leave for a different qualifying reason in the same leave year and their eligibility status has changed, the employer should notify the employee of their change in eligibility status within five business days.

2. Rights & Responsibility Notice: When providing an eligibility notice, employers are also required to provide the employee with a rights and responsibilities notice, which should be in writing and include following information:

• Statement that leave may be designated as FMLA leave and counted against the employee’s leave entitlement;
• Notification of the 12-month period the employer uses to track FMLA leave usage;
• Whether the employee will be required to provide a certification of need for leave and the consequences of failing to do so;
• The employee’s right to use paid leave, whether the employer requires substitution of paid leave, and the employee’s right to take unpaid FMLA leave if the employee does not meet the conditions for paid leave;
• Whether the employee is a “key employee;”
• Employee’s right to job restoration following FMLA leave and maintenance of benefits; and
• Whether the employee will be required to make premium payments to maintain health benefits and any arrangements for doing so, the consequences of failing to make payments on a timely basis, and the employee's potential liability for premium payments made by the employer if the employee fails to return to work.

Employers are expected to respond promptly and thoroughly to employee inquiries regarding their rights and responsibilities under the FMLA. Additionally, if an employee requests additional leave and the information in the original rights and responsibilities notice has changed, the employer should provide the employee with written notice of the updated information within five business days. For example, if the initial leave period was paid leave and the subsequent leave period would be unpaid leave, notice of new arrangements for making health insurance premium payments may be required.

3. Designation Notice: Once the employer has enough information to determine whether an employee’s time away from qualifies as FMLA leave, the employer is required provide the employee with a written designation notice within five business days. If the leave qualifies as FMLA leave, the designation notice should include:

• Whether the employee is required to substitute paid leave for unpaid FMLA leave;
• Whether the employee will be required to submit to a fitness-for-duty certification upon return to work; and
• If known, the amount of leave that will be counted against the employee’s FMLA leave entitlement. If the amount of leave is unknown at the time of designation, the employer is required provide the employee with a leave balance upon the employee’s request.

If the employer determines that an employee’s leave is not FMLA-qualified, they should provide the employee with a written statement explaining this determination. Further, if an employer lacks sufficient information to determine whether the leave qualifies for FMLA protection, the employer should provide written notice stating that the certification is incomplete or insufficient and specifying what additional information is needed to make a determination.

Employers should take care to ensure compliance with the FMLA’s notice requirements because failure to provide required FMLA notices may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights. The attorneys at Maynard Nexsen regularly assist employers in evaluating whether an employee’s request for leave qualifies as FMLA leave and provides guidance to ensure compliance with all legal requirements related to FMLA leave.