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The Family and Medical Leave Act Final Rule: Employers Must Act Promptly to Preserve Their (Few) Rights

Winter 1995

Our Labor & Employment Practice Group would be happy to assist you with any questions relating to this article.

Employer Nightmare: An employee returns to work after recovering from a serious health condition. The following week, the employee reports that he will now take twelve weeks of family leave to care for his recently born child. The employer objects, stating that because the employee already has used six weeks of medical leave because of his serious health condition, he has only six, not twelve, weeks of family and medical leave left. The employee then correctly responds that due to the employer's failure to designate his recent leave as covered under the FMLA, he has twelve weeks of leave left.

Employers who efficiently administer their family and medical leave policies can use the Family and Medical Leave Act of 1993 (the "FMLA") to avoid the threat illustrated by this "nightmare." However, under the FMLA's Final Rule, effective April 6, 1995, employers must act promptly to identify and, when appropriate, designate FMLA qualifying leave.

The Final Rule, published at 29 C.F.R. § 825.208, creates a very short time period during which an employer may designate leave as FMLA leave. If an employer intends to designate a leave as FMLA leave, the employer generally must inform the employee of such designation within two business days of the time the employee gives notice of the need for the leave. If the employer initially does not have sufficient information to make a determination that the leave qualifies under the FMLA, the employer generally must give notice to the employee within two business days of the time the employer receives the required information. Employers may notify the employee orally or in writing. If oral notification is given, however, the employer must confirm the designation in writing, normally no later than the following payday.

Failure to promptly designate the leave as FMLA leave, absent exceptional circumstances, prohibits an employer from later retroactively designating the leave as FMLA leave. An employer may designate the leave as FMLA leave only prospectively from the date the employee is notified of the designation. Therefore, an employer's failure to give timely notice could entitle an employee to more than the normal twelve weeks of leave during a qualifying year.

These requirements of precision, efficiency, and vigilance are not imposed on employees. The Final Rule states that employees requesting unpaid leave must provide the reasons for the leave "so as to allow the employer to determine that the leave qualifies under the Act." The employee need not, however, expressly assert his or her rights under the FMLA or even mention the FMLA. The Final Rule notes that employees requesting paid leave may or may not explain the need for the leave, depending upon the purpose of the leave and the employer's policies regarding such explanation. If the employer does not have sufficient information to determine whether a request for paid leave qualifies for FMLA leave, the employer must request additional information.

The Final Rule also requires the employer to designate that the leave qualifies under the FMLA based only on information from the employee (or the employee's spokesperson). Thus, the employer may neither wait for the certification, if that document is not provided within the two-day time frame, nor attempt to gain further information by directly contacting a health care provider. If the certification later fails to confirm that the leave was for a FMLA qualifying reason, the employer must withdraw the designation, in writing.

If employers are alert to their rights, they can ensure that employees apply their FMLA entitlement to leave taken. In order to do so, the employer should inquire for virtually every absence whether the employee contends that the absence is FMLA qualifying. A written form may be useful for this purpose.

If employers are not vigilant about designating leave as FMLA leave, employees can choose, perhaps long after the leave is over, to claim or to deny that leave was FMLA leave. Thus, to keep employees from having it both ways, employers must address the FMLA issue head-on.

The Final Rule makes substantial revisions to the FMLA. This article deals with only one aspect of the Final Rule. Employers should review their current FMLA and other leave policies to make sure that they comply with the Final Rule, as well as state law requirements.

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