Notice, Designation and Substitution of Leave Requirements Under the Family and Medical Leave Act

The Family and Medical Leave Act of 1993 (FMLA) imposes notice obligations on both employers and employees. Employees must give their employer notice of their need for leave by providing an FMLA-qualifying reason for leave. Employees are not, however, required to use the words “FMLA” when asking for leave. Employees must also tell their employer if they wish to substitute paid leave for unpaid FMLA leave. Finally, employees must provide their employer with two-days’ notice of their plans to return to work following leave. Employers initially must give employees notice of their FMLA rights. Once an employee has requested leave, the employer then must (1) notify the employee if he/she is eligible for FMLA leave, (2) designate the employee’s leave as FMLA leave, if appropriate, and (3) tell the employee if paid leave must be substituted for unpaid FMLA leave. In 2002, in a 5-4 decision, the U.S. Supreme Court altered the legal landscape of FMLA notice. In Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002), the Supreme Court invalidated one remedial FMLA regulation related to notice, but expressly declined to rule on the validity of other notice and related remedy provisions. Notably, the Ragsdale dissent did validate these related individualized notice provisions, finding the regulations a reasonable exercise of the Department of Labor’s (DOL) authority