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FMLA—Designating Leave and Employer Required Notices

A recent article of the Kentucky Employment Law Letter outlined several important provisions of the Family and Medical Leave Act (“FMLA”) regulations concerning notices which an employer must provide to an employee.  Amongst those notices are the general notices which must be posted in a workplace and made part of any employee handbook.  The general notices provide that “every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the [Act’s] provisions and providing information concerning the procedures for filing complaints of violations of the Act with the [federal] wage and hour division”, and also employers must “provide this general notice to each employee by including the notice in employee handbooks or other written guidance to employees… or by distributing a copy of the general notice to each new employee upon hiring.”  These provisions for general notice regarding FMLA are easily complied with and very straight forward.  Other notices can be a bit more difficult to keep up with in a busy day-to-day business setting. 

One very important notice is the eligibility notice.  The FMLA regulations state that “when an employee requests leave or when the employer acquires knowledge that an employee’s leave may be for an FMLA – qualifying reason, the employer must notify the employee of [his] eligibility to take FMLA leave within five (5) business days.”  The purpose of this notice is to inform the employee that they are eligible to take FMLA leave as their reason for requiring such leave qualifies them to do so.  In thinking about the requirement to provide the employee with notice that they are eligible for FMLA leave, another issue comes to mind.  Whether the leave an employee has already begun taking should be designated as FMLA leave and what an employer’s responsibilities are in a situation where the facts and circumstances surrounding leave make the answer to that question unclear. 

§825.301(a) of the FMLA regulations provides guidance for employers in this situation.  It states, “Employer Responsibilities.  The employer’s decision to designate leave as FMLA – qualifying must be based only on information received from the employee or the employee’s spokesperson (e.g., if the employee is incapacitated, the employee’s spouse, adult child, parent, doctor, etc.), may provide notice to the employer of the need to take FMLA leave.”  In any circumstance where the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or the spokesperson to ascertain whether leave is potentially FMLA – qualifying.  Once the employer has acquired knowledge that the leave is being taken for a FMLA – qualifying reason, the “employer must notify the employee as provided in §825.300(d) (the FMLA notice provision).” 

Pursuant to this regulation, an employer should be diligent in communicating with an employee taking leave to properly designate the leave as FMLA qualifying and insuring that the reason for such leave is FMLA qualifying.  Once an employer has determined that such leave is FMLA qualifying, the employer should be diligent to notify the employee that the leave will be designated as FMLA leave so that the employee can understand their rights and responsibilities associated therewith.

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland PLLC. Mr. Worley concentrates his practice in employment law, criminal defense, litigation and telecommunications. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780, ext. 1201.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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