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FMLA COMPLIANCE ISSUES ARE INCREASINGLY COMMON, and during the pandemic we have seen an increased spotlight on employer leave policies. If your client qualifies as a covered employer, we encourage you to brush up on their FMLA compliance efforts and ensure that they don’t get any of the following questions wrong.

Does an Employer Need to Provide an Employee with Notice of Eligibility Even If They Don’t Mention FMLA When They Advise of the Need for Leave?

Yes. There are no magic words to request FMLA leave. Employers must assess whether an employee is entitled to FMLA leave even if the employee doesn’t cite FMLA in their request for leave. However, the employee must first provide sufficient information to make the employer aware of the need for FMLA leave, such as whether the condition renders the employee unable to perform the essential functions of the job. If you believe you need more information about whether FMLA leave is being sought, ask questions.

Notably, employers are required to provide a total of four notices to employees seeking FMLA leave: (1) a general notice of FMLA rights; (2) an eligibility notice within five days of a leave request; (3) a rights and responsibilities notice along with the eligibility notice; and (4) a designation notice within five business days of receiving enough information to know the leave is for a FMLA-qualifying reason.

Can an Employer Retroactively Designate Leave as FMLA Leave?

It depends. An employer is only permitted to designate leave as FMLA leave retroactively if: (1) the employer and the employee mutually agree to do so; or (2) the employer provides appropriate notice and the employer’s failure to timely designate the leave does not cause harm or injury to the employee.

Can an Employer Only Request Recertification of FMLA Leave Every Six Months?

No. Employers may also request recertification: (1) if the circumstances described in the previous certification have changed significantly; (2) if the employer receives information that casts doubt upon the employee’s provided reason for the absence of continuing validity of the certification; or (3) if the employee requests an extension of FMLA leave. If an employer determines that recertification is necessary, the employer should communicate the need directly to the employee, as opposed to only the employee’s provider, and ask the employee to provide the supporting certification within 15 calendar days.

Can an Employer Count Light-Duty Work as FMLA Leave?

No. No work may be performed during any period of time counted as FMLA leave. If an employee requests to take FMLA leave, light-duty work can be offered in lieu of FMLA leave, but if the employee wants time off, the individual is entitled to take FMLA leave provided they meet the eligibility requirements. This is the case even if an employer is competing against time-sensitive deadlines.


Michael J. Volpe is with Venable LLP, where he co-chairs the Labor and Employment Practice Group.