Should an employer initiate the process for FMLA leave when it learns of an employee's extended medical treatment even if the employee has not asked for it?

Yes, it is the employer’s responsibility to initiate the process for Family and Medical Leave Act (FMLA) leave even if the employee has not asked for it. FMLA regulations clearly state that the employee does not have to expressly request FMLA leave. The employer’s decision to designate leave as FMLA-qualifying must be based on information from the employee or from his or her representative (a spouse, adult child, parent or doctor in the event the employee is incapacitated). If the employer lacks sufficient information on the reason for the leave, it has the responsibility to inquire further of the employee or representative to determine if the leave qualifies for FMLA protection. Once the employer has made an affirmative decision of this possibility and has verified that the employee is eligible for FMLA leave, it must provide the employee with the proper FMLA notice.

A Department of Labor (DOL) opinion letter makes clear the department's stance that employers should always designate FMLA leave when there is enough information to do so, even if the employee requests otherwise. The FMLA designation notice (WH-382) revised in June 2020, includes this statement: "Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, an employer may not delay designating such leave as FMLA leave, and neither the employee nor the employer may decline FMLA protection for that leave."

In conflict with the DOL's guidance, the 9^th U.S. Circuit Court of Appeals has held that an employee may decline to designate time off as FMLA leave, even if the reason for the leave qualifies for such job-protected time off. The 9^th Circuit includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Employers in the 9^th Circuit should seek legal counsel in determining how to proceed if faced with a situation where FMLA should be designated under the DOL guidance but the employee is requesting otherwise. 

An employer’s failure to designate an absence as FMLA leave that causes an employee harm may be deemed a denial of the employee’s FMLA rights. It may lead to liability for compensation and benefits and for other equitable relief for the violation.