Publication Date


Document Type





This article was published in Nebraska Lawyer Magazine in November 2000.


The Family and Medical Leave Act (FMLA) entitles eligible employees to take a total of twelve workweeks of leave during any twelve-month period for specifically prescribed circumstances such as a serious health condition or the birth or adoption of a child. Does the FMLA require employers to specifically designate leave as FMLA leave or risk having to provide more than the guaranteed twelve weeks of leave? This precise question created a circuit split in the federal courts before the Supreme Court of the United States answered the question in March 2002. This article, published in 2000, addressed the issue a couple of years before the Supreme Court decided it.

Here is the fact pattern that lies at the heart of this article’s analysis of the employer’s obligation to designate leave as FMLA leave and how it impacts an employee’s right to take FMLA leave. After a year of working for a new employer, an employee was diagnosed with cancer and was unable to work. Under the employer’s leave policy, all employees with at least six months of service were entitled to take up to seven months of leave, a generous leave policy under almost anyone’s definition. Once an employee’s leave commenced, an employee was required to request a leave extension every thirty days. The employee with cancer properly requested medical leave and the employer granted the leave request. The employee then requested extensions monthly; all requests were granted by the employer. When the employee exhausted her seven months of leave, the employee was unable to return to work. Indeed, the employee was at least three months away from being able to return to work. The employer never personally notified the employee of her eligibility for FMLA leave; the employer also never formally designated the seven months of leave already taken as FMLA leave. The employee then requested additional leave under the FMLA, even though the employer had already provided seven months of leave. The employer was faced with the question of whether the employee was entitled to twelve weeks of FMLA leave in addition to the seven months of leave already provided by the employer, all because the employer failed to specifically designate all or parts of the seven months of leave as FMLA leave.

The FMLA does not expressly require an employer to specifically designate employee leave as FMLA leave; it simply guarantees a certain amount of leave to certain employees. The Department of Labor (DOL), on the other hand, enacted regulations that squarely and unambiguous placed the burden on employers to designate leave as FMLA leave: “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.”

It was not long before courts were called upon to determine whether the DOL acted within its authority in promulgating the above-quoted regulation. This article discusses how the issue was resolved in the Unites States Courts of Appeals for the Sixth, Eighth, and Eleventh Circuits, focusing mostly on the Eighth Circuit’s striking down of the above-quoted regulation as exceeding the DOL’s authority. The Supreme Court decided the issue in March 2002, affirming the Eighth Circuit’s decision.

Ultimately, this article is still relevant, even though it predated the Supreme Court’s decision. This is particularly true because the article provides a path forward for employers to avoid any entanglements with designation issues like the one that started the federal case in the first place. To avoid such conflicts (as all employers and employees should seek to do), an employer should provide all employees with a clear leave policy that fully addresses FMLA leave and how it relates to employer-provided leave (whether paid or unpaid). Supervisors and human resource managers must understand and correctly implement those policies once adopted. Designating leave as FMLA leave ensures that employees are granted their FMLA-entitled leave while protecting employers from the potential pitfalls of miscommunication. As we all know, miscommunication and misunderstandings often are the impetus to litigation over rights and responsibilities. Although employers will not be punished for failing to designate employer-provided leave as FMLA leave (at least as long as the employee’s substantive FMLA rights have been protected), a clear leave policy consistently applied will erase any need to have an employment dispute resolved through litigation. Clear policies help to avoid employment disputes; lawsuits emanating from unclear policies or miscommunication are a waste of resources and harm the valuable employer-employee relationship.

Included in

Law Commons