Employer Designation Notice - Requirements

In all circumstances, it is the employer's responsibility to designate leave as FMLA-qualifying (whether unpaid or paid through substitution of paid leave), and to give notice of this designation to the employee. 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 his or her spokesperson (for example, a spouse, adult family member or other responsible party) to determine whether leave is potentially FMLA-qualifying.

When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee whether the leave has or has not been designated as FMLA leave within five business days absent extenuating circumstances.

Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave will be a continuous block or intermittent or reduced schedule leave. The notice should also include the number of hours, days or weeks that will be counted against the employee's FMLA leave entitlement.

• If it is not possible to provide the hours, days or weeks that will be counted against the employee's FMLA leave entitlement (such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement upon request by the employee, but not more than once in a 30-day period and only if leave was taken during that period.

If the employer will require the employee to present a fitness-for-duty certification to return to work, the employer must provide notice of such requirement with the designation notice. See Fitness-for-Duty Certification for more information about fitness-for-duty certification requirements.

The designation notice must be in writing. Employers may use the optional form WH-382. If the leave is not designated as FMLA leave because it does not meet the law's requirements, the notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement.

If the information provided by the notice changes, the employer must, within five business days of receipt of the employee's first notice of need for leave subsequent to the change, provide written notice of the change.

Failure to follow the designation notice requirements may constitute an interference with, restraint, 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.

To learn about notices employees are required to provide to their employers, see Employee Notice Requirements. To learn about documentation employees may be required to provide (such as a medical certification), see Documentation/Certifications from Employees.

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For more information on this aspect of the FMLA, see the FMLA regulations: § 825.300(d), § 825.301