The Essential Guide to Family & Medical Leave

124 | the essential guide to family and medical leave
Making a Preliminary Designation
What if an employee comes to you requesting leave, and you’re not sure
whether the leave is FMLA-qualified? That’s what a preliminary designation
is for: It allows you to designate the leave as FMLA leave, pending an
investigation into whether the leave actually qualifies for the FMLA’s
protections. The preliminary designation should be in writing, like the
sample below. (You can find a blank copy of the form in Appendix C and on
the CD-ROM at the back of this book.)
Your investigation into the reason for the leave has limits—you can’t go
snooping about on your own. Instead, your designation decision has to
be based on the information you receive from the employee or from the
employee’s spokesperson (such as spouse, parent, or child) if the employee
is incapacitated, as well as the information in the employee’s medical
certification for medical leave.
If you make a preliminary FMLA designation and later learn that it is
incorrect because, for example, the medical certification doesn’t reveal a
serious health condition, you must withdraw that designation. Like the
preliminary designation, this withdrawal should also be in writing. If you
withdraw a preliminary FMLA designation, you can’t count any leave time
taken against the employee’s available FMLA leave time.
However, if you learn that the leave requested falls within the FMLA, you
must notify the employee within two business days that you are permanently
designating the leave as FMLA leave. As with a preliminary designation, the
designation should be in writing. It also has to state that the leave is FMLA
leave and will be counted against the employee’s available FMLA leave time.
If you give the designation orally first, you need to confirm it in writing no
later than the following payday. The FMLA does not require you to use a
particular form to designate FMLA leave; you can even do it as a notation on
the employee’s pay stub.