What does the FMLA’s designation notice require?

Timing. Rules published in November 2008 give employers more time to provide employees with a designation notice. An employer must notify an employee within five business days (previously two days), absent extenuating circumstances, that leave will (or will not) be designated and counted as FMLA leave, once the employer has sufficient information to make such a determination (after receiving a certification, for example). In a case where there is already sufficient information, the employer may provide the designation and eligibility notices simultaneously upon an employee’s request for leave.

Only one designation notice is required for each FMLA-qualifying reason per leave year, regardless of whether the leave is taken continuously, intermittently or on a reduced schedule basis.

Content. The designation notice must notify employees whether or not the leave will be designated and counted as FMLA leave. The obligation to notify employees whether their leave is FMLA-qualifying, or whether they have FMLA leave available, is part of the designation.

Amount of leave. If the amount of leave needed is known at the time, the designation notice must notify the employee of the number of hours, days or weeks that will be counted against his or her FMLA entitlement. Where the amount of leave is not known at the designation stage, such as in cases of unforeseeable intermittent leave, an employer must inform the employee of the amount of time counted against the FMLA entitlement only on employee request, and no more often than every 30 days if FMLA was taken during that period.

Paid leave. If an employer requires substitution of paid leave, it must inform the employee of that at the time of designating FMLA leave.

Certification requirement. Employers also must provide written notice of any fitness-for-duty certification requirement-including whether it must address the employee’s ability to perform the essential functions of the position-with the designation notice. If there is such a requirement, a list of essential functions must be included. However, if an employee handbook or other written document clearly provides that a fitness-for-duty certification will be required, the employer only needs to provide oral notice, no later than with the designation notice.

Changes. If information provided in the designation notice changes, such as when the employee exhausts his or her FMLA leave entitlement, the employer must provide written notice of the change within five business days of receiving the employee’s notice of the need for leave subsequent to the change.

Method. An employer may notify an employee of the time counted against his or her FMLA entitlement orally or in writing. If provided orally, it must be confirmed in writing no later than the following payday. Also, if the payday is in less than one week, it may be provided no later than the subsequent payday. The written notice may take any form, including a notation on the employee’s pay stub.

Designation decisions must be based only on information received from the employee or his or her spokesperson and, if there is a dispute as to whether leave qualifies as FMLA leave, it should be resolved through documented discussions between the employee and the employer.

Sample notice. Employers may satisfy the designation requirements by using a new sample designation notice, Form WH-382: Designation Notice. Form WH-382 is reproduced in Appendix E of the regulations; copies are available at local Wage and Hour Division offices and at http://www.wagehour.dol.gov . See Designation Notice to Employee of FMLA Leave at ¶15,350.

If leave is not designated as FMLA leave because it does not meet the requirements of the law, the notice to the employee may be in the form of a simple written statement.

Retroactive designation. If an employer does not timely designate leave as FMLA leave, it may retroactively designate it (furnishing the appropriate designation notice to the employee), provided the employer’s delay does not cause harm or injury to the employee. In cases where leave qualifies for FMLA protections, an employer and employee can mutually agree to retroactively designate the leave as FMLA leave.

Because the new rules better separate the eligibility notice from the designation notice requirements, there is no longer a need to make a provisional designation that is later finalized or withdrawn. Employers can now wait longer-until they have received certification and other required information-before designating leave as FMLA leave.