Under the regulations, an employer must notify an employee whether leave will be
designated as FMLA leave within five business days of learning that the leave is being
taken for a FMLA-qualifying reason, absent extenuating circumstances. The designation
notice must also state whether paid leave will be substituted for unpaid FMLA leave and
whether the employer will require the employee to provide a fitness-for-duty certification
to return to work (unless a handbook or other written document clearly provides that such
certification will be required in specific circumstances, in which case the employer may
provide oral notice of this requirement). Additionally, if the amount of leave needed is
known, an employer must inform an employee of the number of hours, days or weeks
that will be counted against the employee’s FMLA leave entitlement in the designation
notice. Where it is not possible to provide the number of hours, days, or weeks that will
be counted as FMLA leave in the designation notice (e.g., where the leave will be
unscheduled), an employer must provide this information upon request by the employee,
but no more often than every 30 days and only if leave was taken during that period.
