Inquiry of the Week (7/19/99)

Question:

Who has the authority to designate leave as FMLA leave - the employer or the employee?

Answer:

The situation addressed by this question is where the employee takes leave as something other than FMLA leave, even though the circumstances would qualify it as FMLA leave. Can the city require that the leave be designated as FMLA leave, rather than as, say, sick leave?

The answer appears to be yes, the city may designate the leave as FMLA leave. This conclusion is based on 29 C.F.R. §825.208, which states in part:

In all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee as provided in this section.

This is a long regulation, but it is clear from reading it that, if an employee wants to take leave for something that qualifies as FMLA leave, the employer may designate it as FMLA leave, even if the employee wants it designated as sick leave. Sections (c) and (d) makes this fairly clear:

(c) If the employer requires paid leave to be substituted for unpaid leave, or that paid leave taken under an existing leave plan be counted as FMLA leave, this decision must be made by the employer within two business days of the time the employee gives notice of the need for leave, or, where the employer does not initially have sufficient information to make a determination, when the employer determines that the leave qualifies as FMLA leave if this happens later. The employer's designation must be made before the leave starts, unless the employer does not have sufficient information as to the employee's reason for taking the leave until after the leave commenced. If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave (and so notify the employee in accordance with paragraph (b)), the employer may not designate leave as FMLA leave retroactively, and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement. (d) If the employer learns that leave is for an FMLA purpose after leave has begun, such as when an employee gives notice of the need for an extension of the paid leave with unpaid FMLA leave, the entire or some portion of the paid leave period may be retroactively counted as FMLA leave, to the extent that the leave period qualified as FMLA leave. For example, an employee is granted two weeks paid vacation leave for a skiing trip. In mid-week of the sEcond week, the employee contacts the employer for an extension of leave as unpaid leave and advises that at the beginning of the sEcond week of paid vacation leave the employee suffered a severe accident requiring hospitalization. The employer may notify the employee that both the extension and the sEcond week of paid vacation leave (from the date of the injury) is designated as FMLA leave. On the other hand, when the employee takes sick leave that turns into a serious health condition (e.g., bronchitis that turns into bronchial pneumonia) and the employee gives notice of the need for an extension of leave, the entire period of the serious health condition may be counted as FMLA leave.