When things change, do you provide updated designation notice?
Joe Employee amply put you on notice of the need for four weeks of FMLA leave due to an injury. You made sure all your FMLA Is were dotted and all your FMLA Ts were crossed, in part by providing Joe with an eligibility/rights & responsibilities notice and a designation notice. As allowed, you did ask for, and received, a complete and sufficient certification. All seems well in the FMLA world.
But wait! That tranquility may be short-lived. While Joe originally requested four weeks of leave, after about three weeks, he informs you that he will need a couple extra weeks for a total of six weeks of leave.
So, you request a recertification, since Joe has requested an extension of leave. No problems there, he produces one quickly, and it supports those extra couple weeks. You put all the information in Joe’s file, and all’s right with the world again.
Or is it?
An employee’s leave requirements can, and do, change. Leave might need to be extended, shortened, changed from continuous to intermittent, and so on. What do such changes mean for you? You’ve got the recertification, the employee is taking the leave, and will be reinstated when the leave is over.
What about the information you gave the employee? Nothing in the eligibility/rights & responsibilities notice has changed, but the information in the designation notice did. It included information on how many hours, days, or weeks would be counted as FMLA leave, as directed. Originally, that was four weeks for Joe. Now you’re designating six weeks as FMLA leave.
Communication is key
Part of the FMLA mandates that you provide certain information to the employee. Over the years, the U.S. Department of Labor (DOL) and the courts have held that communication is a key part of compliance. The regulations do indicate the following:
“If the information provided by the employer to the employee in the designation notice changes (e.g., the employee exhausts the FMLA leave entitlement), the employer shall provide, within five business days of receipt of the employee’s first notice of need for leave subsequent to any change, written notice of the change.” 825.300(d)(5)
Courts have interpreted this provision as applying whenever the information in the designation notice changes. In one case, an employer did not provide an employee such a written notice of the change, and essentially lost its argument. Therefore, for Joe, those extra two weeks of leave would warrant an additional notice that those weeks would also be designated as FMLA leave.
While you are not mandated to use the DOL’s model designation notice for this, you certainly may. Just make sure the notice is in writing.
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