The Essential Guide to Family & Medical Leave

chapter 7 | GivING NOTICE AND DESIGNATING LEAve | 131
If You Don’t Designate Within the Time Allowed
If you know that an employee’s requested leave is for an FMla-qualified
reason but fail to give the employee a written FMla designation within two
business days of learning about it, you can’t retroactively designate the leave
as FMla leave. Exactly what this means, however, is an open question.
The regulations interpreting the FMla say that employers cannot
count time off that they fail to designate against the employee’s 12-week
FMla leave entitlement. However, the U.S. Supreme Court, in Ragsdale v.
Wolverine World Wide Inc., 553 U.S. 81 (2002), invalidated this rule to the
extent that it allows the employee to take more than 12 weeks of FMlaprotected
leave.
As a result of this case, commentators agree that you can subtract FMlaqualified
time off from the employee’s available FMla leave time, even
if you fail to designate it as FMla leave. But if an employee relies on the
failure to designate in some way that harms his or her interests, the employee
may still have a claim under the FMla. The Department of Labor is
expected to issue revised regulations to clear up what exactly the effect of this
kind of reliance is but has not yet done so.
RESOuRCE
Check Nolo’s website for updates to DOL regulations. When this book
went to print, the FMLA regulations were under review. If new regulations
are adopted, we’ll explain them at www.nolo.com. (See Chapter 1 for
more information.)