On April 1, 1995, the final regulations of the U.S. Department of Labor Implementing the Family and Medical Leave Act of 1993 ("Regulations"), 29 C.F.R. §825 et seq. (1995), ¹ became law. This article focuses on one particular aspect of the new regulations: notice. ² It describes generally an approach that units of local government (other than school districts) can take to avoid being taken off guard by an employee's request for leave under the Act. ³

Background
Enacted in 1993 to alleviate situations where individuals are forced to choose between tending to family emergencies and maintaining job security, the Family and Medical Leave Act of 1993 (the "Act" or "FMLA"), 29 U.S.C. 2601 et seq., requires certain employers to provide up to 12 weeks of unpaid leave for certain qualifying reasons, specifically (1) for the birth of the employee's child and to care for the child; (2) for placement with the employee of a child for adoption or foster care; (3) to care for the employee's spouse, child, or parent with a serious health condition; and (4) due to a serious health condition that renders the employee incapable of performing the functions of his or her job. Because all units of local government are considered "employers," all are subject to posting and record-keeping requirements of the Act. Only if the employer has 50 or more employees, however, are its employees entitled to leave.

The Act and the Regulations specify the duties of employees and employers, entitlements of eligible employees and the penalties for failure to follow the Act. If a potential FMLA situation arises, you should consult the Regulations ⁴ or contact your attorney to determine whether or not the leave is FMLA-qualified and how specifically to proceed.

Written Guidance
The Regulations provide that if an FMLA-covered employer has any eligible employees ⁵ and has any written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. They also provide that whenever the employer designates leave as FMLA, the employer must provide "written guidance," either in the form of copies of its own policies or the FMLA Fact Sheet available from the U.S. Department of Labor, Wage & Hour Division. ⁶

Be aware that several sections of the Regulations state, "If an employer fails to select [an option], the option that provides the most beneficial outcome to the employee will be used." Therefore, it is wise to adopt an FMLA policy or to check your current policy to understand the ramifications of the different options you may have already chosen. ⁷

Employee Notice
Foreseeable Leave
An employee must give the employer at least 30 days advance notice before FMLA leave is to begin when the need is foreseeable. If 30 days is not practical, then notice must be given as soon as practical, which would ordinarily mean within one of two business days of when the need for leave becomes known. When planning medical treatment, the employee must consult with the employer and make reasonable effort to schedule the leave so as not to unduly disrupt the employer's operations. This is subject to the approval of the employee's health care provider.

An employee's notice may be verbal and should set forth the anticipated timing and duration of the leave along with sufficient information to enable an employer to determine if the leave qualifies under FMLA. The employee need not expressly assert rights under the FMLA or even mention the FMLA. In addition, the employer has the option of waiving the FMLA notice requirements.

April 1995 / Illinois Municipal Review / Page 15

Unexpected Leave
When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as possible defined as "generally one or two working days, except in extraordinary circumstances."

Notice may be given by the employee's spokesperson (e.g., spouse, physician) if the employee is unable to do so personally. Notice may be provided in person, by telephone, fax machine or other electronic means, and again, the employee need not expressly assert rights under the FMLA or even mention the FMLA.

Employer Designation
After Employee Notice
Once an employee has requested FMLA leave, the employer must first supply the employee with a "written guidance" on FMLA either in the form of its own policies addressing the subject or the Department of Labor Fact Sheet containing a description of employee rights and obligations. The employer must also provide, among other things, notice that the leave is designated and will be counted as FMLA leave "within a reasonable time after notice of the need or leave is given by the employee — within one or two business days if feasible." An employee may choose to substitute accrued paid leave for FMLA leave.

Without Express Employee Notice
Because the Act allows the employer to require that the employee substitute accrued paid leave for FMLA leave ⁸ but states that in the event of a dispute the option that provides the most beneficial outcome to the employee will be used, employers must be careful when designating leave as FMLA leave without the employee's request. The most likely scenario occurs when an employee fails to give notice that they are using paid leave for an FMLA qualifying purpose and the employer wants to count the paid leave toward the employee's FMLA entitlement.

In this case, the employer must follow detailed procedures. First, the employer must have already put employees on notice of the requirement that paid leave be substituted for FMLA leave in its "written guidance." Second, once the employer "acquires knowledge" that a specific employee's leave either unpaid or paid (including worker's compensation or disability leave) is being taken for an FMLA-qualified reason, the employer must "promptly," defined as "within two business days about extenuating circumstances," notify the employee of the designation in the manner set forth in §825.301 of the Act.

In some instances, the employer may make a preliminary designation. Upon receipt of the additional information requested, a final designation can be made or the designation can be withdrawn. This is appropriate where 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 ⁹ which has not yet been received, or where the parties are in the process of obtaining a second or third medical opinion. The preliminary designation should be made at the time leave begins, or as soon as the reason for the leave becomes known. If the medical certifications fail to confirm that the reason for the absence was an FMLA leave, the employer must withdraw the designation with written notice to the employee.

If an employer fails to provide the employee with proper notice within two working days of its "receipt of knowledge," it may not designate the leave as FMLA-qualifying retroactively. It does, however, still have the right to designate leave prospectively as of the date it notifies the employee of its designation.

The following example illustrates these rules. Joe has chest pains on Sunday night, goes into the hospital for tests, and is ordered to stay overnight. On Monday morning, his wife notifies the office manager that he will be using five sick days for the rest of the week but does not state the reason for the use of sick leave. Joe's doctor puts him through tests on Monday and Tuesday and tells him to rest through Friday. On Tuesday, the office manager learns that Joe is receiving inpatient

Page 16 / Illinois Municipal Review / April 1995

treatment for a heart condition. If the employer notifies Joe by Thursday that his leave is designated FMLA, all five days (one workweek) will be counted against Joe's 12-week FMLA entitlement (assuming the employer's written guidance stated the requirement of paid leave substitution). If the employer gives Joe notice on Friday, only one day will be counted against his entitlement.

When an employee is on leave using accrued paid vacation and he or she seeks to extend leave as unpaid FMLA, the employee must provide the employer with proper notice. If the employer gives proper notice, the entire or some portion of the paid leave period may be retroactively counted as FMLA leave to the extent that the leave period qualifies 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 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.

Form and Content of Employer Notice
Notice of FMLA designation may be given orally or in writing. If the notice is oral, it must be confirmed in writing, not later than the following payday (unless the payday is less than one week after the oral notice, in which case the notice must be not later than the subsequent payday). The written notice may be in any form, including a notation on the employee's pay stub. The Department of Labor has a form notice which should be modified to fit your particular situation.

The notice, according to §825.301 must contain:

1. information that the leave will be counted against the employee's annual FMLA leave entitlement;
2. any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;
3. the employee's right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitution;
4. any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis;
5. any requirement for the employee to present a fitness-for-duty certificate in order to be restored to employment;
6. the employee's status as a "key employee" ¹⁰ and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial;
7. the employee's right to restoration to the same or an equivalent job upon return from leave; and
8. the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.

It may also include other information, such as whether the employee must report periodically on his or her status and intent to return to work.

Conclusion
Under the FMLA, eligible employees are granted

April 1995 / Illinois Municipal Review / Page 17

considerable rights in the event of family emergencies. The Act and the Regulations contain provisions that help employees meet family responsibilities but also accommodate the legitimate interests of employers. Employers have some leeway in their ability to choose different options provided they do so by policy in advance of trying to impose those options. If a dispute arises, a key consideration will be whether or not the notice given to the employee was timely and proper. •

1. Citations in the text will refer to section number only.
2. For details on what types of situations require that leave be granted and for information on the entitlement of an employee on leave, please consult the Regulations and/or your attorney. Discussion of the specific requirements for intermittent or reduced schedule leave are beyond the scope of this article.
3. The regulations also contain specific provisions that address needs particular to the school setting and are beyond the scope of this article. See, Subpart F, 29 C.F.R., 825.600 et seq.
4. A copy of the full text of the Regulations and other material are available from the U.S. Department of Labor, Wage and Hour Division, (312) 353-8145.
5. An "eligible employee" is an employee of a covered employer who:
     (1) Has been employed by the employer for at least 12 months, and
     (2) Has been employed for at least 1,250 hours of service during the
     12-month period immediately preceding the commencement of the
     leave, and
     (3) is employed at a worksite where 50 or more employed by the
     employer within 75 miles of the worksite.
6. This is also available by calling (312) 353-8145.
7. The most important option that an employer has is the right to require that accrued paid leave be substituted for FMLA leave (825.207). Other options include the manner of choosing the 12-month period (825.200), the requirement that employees provide medical certification (825.305) and the option of allowing an employee to accrue additional benefits while on leave (825.215(d)(2)).
8. Employer may not require the use of compensatory time accrued (825.207).
9. The employer may require that leave related to the serious medical condition of the employee or the employee's family member be conditioned on receipt of proper medical certification of a health care provider. (5825.305) Sample certifications are available from the DOC.
10. For information on the definition of and treatment of "key employees", see 825.218 and 825.219.

Page 18 / Illinois Municipal Review / April 1995