[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.208]



[Page 765-767]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

 Subpart B_What Leave Is an Employee Entitled To Take Under the Family 

                         and Medical Leave Act?

 

Sec.  825.208  Under what circumstances may an employer designate leave, 

paid or unpaid, as FMLA leave and, as a result, count it against the 

employee's total FMLA leave entitlement?



    (a) 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. In the 

case of intermittent leave or leave on a reduced schedule, only one such 

notice is required unless the circumstances regarding the leave have 

changed. The employer's designation decision 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 paid leave, the employer should inquire further of the employee or 

the spokesperson to ascertain whether the paid leave is potentially 

FMLA-qualifying.

    (1) An employee giving notice of the need for unpaid FMLA leave must 

explain the reasons for the needed leave so as to allow the employer to 

determine that the leave qualifies under the Act. If the employee fails 

to explain the reasons, leave may be denied. In many cases, in 

explaining the reasons for a request to use paid leave, especially when 

the need for the leave was unexpected or unforeseen, an employee will 

provide sufficient information for the employer to designate the paid 

leave as FMLA leave. An employee using accrued paid leave, especially 

vacation or personal leave, may in some cases not spontaneously explain 

the



[[Page 766]]



reasons or their plans for using their accrued leave.

    (2) As noted in Sec.  825.302(c), an employee giving notice of the 

need for unpaid FMLA leave does not need to expressly assert rights 

under the Act or even mention the FMLA to meet his or her obligation to 

provide notice, though the employee would need to state a qualifying 

reason for the needed leave. An employee requesting or notifying the 

employer of an intent to use accrued paid leave, even if for a purpose 

covered by FMLA, would not need to assert such right either. However, if 

an employee requesting to use paid leave for an FMLA-qualifying purpose 

does not explain the reason for the leave--consistent with the 

employer's established policy or practice--and the employer denies the 

employee's request, the employee will need to provide sufficient 

information to establish an FMLA-qualifying reason for the needed leave 

so that the employer is aware of the employee's entitlement (i.e., that 

the leave may not be denied) and, then, may designate that the paid 

leave be appropriately counted against (substituted for) the employee's 

12-week entitlement. Similarly, an employee using accrued paid vacation 

leave who seeks an extension of unpaid leave for an FMLA-qualifying 

purpose will need to state the reason. If this is due to an event which 

occurred during the period of paid leave, the employer may count the 

leave used after the FMLA-qualifying event against the employee's 12-

week entitlement.

    (b)(1) Once the employer has acquired knowledge that the leave is 

being taken for an FMLA required reason, the employer must promptly 

(within two business days absent extenuating circumstances) notify the 

employee that the paid leave is designated and will be counted as FMLA 

leave. If there is a dispute between an employer and an employee as to 

whether paid leave qualifies as FMLA leave, it should be resolved 

through discussions between the employee and the employer. Such 

discussions and the decision must be documented.

    (2) The employer's notice to the employee that the leave has been 

designated as FMLA leave may be orally or in writing. If the notice is 

oral, it shall be confirmed in writing, no later than the following 

payday (unless the payday is less than one week after the oral notice, 

in which case the notice must be no later than the subsequent payday). 

The written notice may be in any form, including a notation on the 

employee's pay stub.

    (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



[[Page 767]]



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.

    (e) Employers may not designate leave as FMLA leave after the 

employee has returned to work with two exceptions:

    (1) If the employee was absent for an FMLA reason and the employer 

did not learn the reason for the absence until the employee's return 

(e.g., where the employee was absent for only a brief period), the 

employer may, upon the employee's return to work, promptly (within two 

business days of the employee's return to work) designate the leave 

retroactively with appropriate notice to the employee. If leave is taken 

for an FMLA reason but the employer was not aware of the reason, and the 

employee desires that the leave be counted as FMLA leave, the employee 

must notify the employer within two business days of returning to work 

of the reason for the leave. In the absence of such timely notification 

by the employee, the employee may not subsequently assert FMLA 

protections for the absence.

    (2) If the employer knows the reason for the leave but has not been 

able to confirm that the leave qualifies under FMLA, or where the 

employer has requested medical certification which has not yet been 

received or the parties are in the process of obtaining a second or 

third medical opinion, the employer should make a preliminary 

designation, and so notify the employee, at the time leave begins, or as 

soon as the reason for the leave becomes known. Upon receipt of the 

requisite information from the employee or of the medical certification 

which confirms the leave is for an FMLA reason, the preliminary 

designation becomes final. If the medical certifications fail to confirm 

that the reason for the absence was an FMLA reason, the employer must 

withdraw the designation (with written notice to the employee).



[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]