The regulations revise the designation provisions to comply with the U.S. Supreme
Court’s decision in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (2002).
Ragsdale ruled that a “categorical” penalty for failure to appropriately designate FMLA
leave was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave
and contrary to the statute’s remedial requirement to demonstrate individual harm. Under
the regulations, retroactive designation is permitted if an employer fails to timely
designate leave as FMLA leave (and notify the employee of the designation). The
employer may be liable, however, if the employee can show that he or she has suffered
harm or injury as a result of the failure to timely designate the leave as FMLA.
Additionally, an employee and employer may agree to retroactively designate an absence
as FMLA-protected.
