The Essential Guide to Family & Medical Leave

146 | the essential guide to family and medical leave
Because you realize that David’s recent unusual behavior may signal a serious
health condition, you grant the request, ask David for more information about why
he needs leave, request medical certification, and send David a preliminary FMLA
designation of the leave.
See an Expert
Consult an attorney when you make an FMLA designation based on
employee behavior. It’s always a bit dangerous to make assumptions based
on an employee’s actions. For example, you could be accused of treating
the employee as if he or she has a disability—which constitutes disability
discrimination under the Americans with Disabilities Act. (See Chapter
11 for more information.) Because you are making assumptions based on
your observations and you’re not a doctor, talking to an attorney can help
you get a reality check.
Common Mistakes Regarding Giving Notice and
Designating Leave—And How to Avoid Them
Mistake 1: Failing to designate FMLA-qualified leave taken as FMLA leave.
Avoid This Mistake By:
• Giving each employee an FMLA designation form (use the sample form
letter in Appendix C or on the CD-ROM at the back of this book)
within two business days of learning of the need for leave that may fall
under the FMLA. Make sure that the FMLA designation form states that
the time off will reduce the employee’s available FMLA leave time.
• Giving the employee a preliminary designation as soon as you learn any
information that makes you believe the leave might be covered by the
FMLA, even if you learn the information after leave has started. You can
always withdraw the designation later, if it turns out you were wrong. If
the leave is FMLA-qualified, issue a final designation.
• Designating other time off (such as vacation or sick leave) as FMLA leave
when a new FMLA-covered event occurs during the leave.