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The certification came back on Monday. It is complete, it supports the leave, and the employee is already out. What you do in the next five business days decides whether those absences count against the 12 weeks, whether you can require a doctor's release before the employee returns, and whether a later dispute is about the leave or about your paperwork.
The FMLA designation notice is the document that settles those questions. This article covers the timing rule in 29 CFR 825.300(d), what the notice must contain, retroactive designation under § 825.301, the fitness-for-duty notice, and what errors cost.
What the FMLA Designation Notice Is
Section 825.300(d)(1) opens with the principle: "The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee." A supervisor's verbal approval is not designation; the notice must be in writing (§ 825.300(d)(4)).
It is different from the notice that comes first. The eligibility and rights and responsibilities notice (DOL Form WH-381) says "you are eligible, and here is what we need from you." The designation notice (DOL Form WH-382) says "we have what we need, and this leave is, or is not, FMLA leave." Our FMLA forms guide for employers sets the two side by side, and the article on employer notice duties and deadlines covers the full sequence.
Use of Form WH-382 is optional, but the form states that a fully completed WH-382 provides the information required by §§ 825.300(d), 825.301, and 825.305(c). If you use your own letter, it has to do the same.
The Deadline: Five Business Days From "Enough Information"
The rule: "When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances" (§ 825.300(d)(1)).
Three things follow from that sentence.
The trigger is information, not a form
In most medical cases the trigger is receipt of a complete and sufficient certification. But if the employee's own notice gives you everything you need, for example a scheduled inpatient surgery with dates, the clock can start then. Section 825.300(d)(2) lets you designate immediately in that situation, and many employers send the WH-381 and WH-382 together.
The count is business days
Example with illustrative dates: a sufficient certification arrives Monday, October 5, 2026. Counting from the next business day, the fifth business day is Monday, October 12. The regulation does not spell out how to count the days or how to treat a holiday such as the federal holiday that falls on that Monday, so treat the fifth day as the outside limit and aim to send the notice earlier.
The decision must be based on what the employee told you
Under § 825.301(a), the decision "must be based only on information received from the employee or the employee's spokesperson." If you do not have enough to decide, the duty is to "inquire further," not to wait.
When the certification is not good enough yet
The five days do not start on an incomplete or insufficient certification, but another duty does: you must state in writing what additional information is needed and allow seven calendar days to cure (§ 825.305(c)). Section II of the WH-382 is designed for this. It promises the employee a decision within five business days after the additional information arrives. Our article on medical certification, recertification, and second opinions covers that step.
One notice per reason, per leave year
"Only one notice of designation is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave" (§ 825.300(d)(1)). An employee with certified intermittent leave for migraines does not get a new WH-382 for each absence. A new qualifying reason, or a new leave year for the same condition, calls for a new notice. See how the 12-month period is counted for when the year turns over.
What the Notice Must Say
| Required content | Source | Where on Form WH-382 |
|---|---|---|
| Whether the leave is designated as FMLA leave and will be counted | § 825.300(d)(1) | Section I: Approved / Not Approved / Additional information needed |
| If not designated, that determination (a "simple written statement" is enough) | § 825.300(d)(1), (4) | Section I, with the reason checked |
| The amount of leave counted, in hours, days, or weeks, if known | § 825.300(d)(6) | Section III |
| If the amount is not known (for example, unforeseeable intermittent leave), the employee's right to ask for it | § 825.300(d)(6) | Section III checkbox |
| Whether paid leave will be substituted or run at the same time | § 825.300(d)(1) | Section III, "Please be advised" |
| Whether a fitness-for-duty certification will be required, and whether it must address essential functions | § 825.300(d)(3) | Section III, return-to-work requirements |
The amount of leave counted
If the amount of leave is known when you designate, state it in the notice. If it is not, you must give the amount counted "upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period." That update may be oral or written; if oral, it must be confirmed in writing no later than the following payday, or the one after if the next payday is less than a week away. A notation on the pay stub is acceptable (§ 825.300(d)(6)).
Paid leave
If you require accrued paid leave to run at the same time as FMLA leave, or count paid leave taken under an existing plan as FMLA leave, you must tell the employee "at the time of designating the FMLA leave" (§ 825.300(d)(1)). The same applies when short-term disability or workers' compensation runs with FMLA leave; the WH-382 has an "Other" line for it. See FMLA and workers' comp concurrent leave.
When the leave does not qualify
You must still notify the employee, for example when the reason is not covered or the entitlement is exhausted. A short written statement satisfies the rule.
The Fitness-for-Duty Notice
If you will require a fitness-for-duty certification before restoring the employee, "the employer must provide notice of such requirement with the designation notice." If you want the certification to address the employee's ability to perform the essential functions of the job, you "must so indicate in the designation notice, and must include a list of the essential functions of the employee's position" (§ 825.300(d)(3)).
The consequence of leaving it out is in § 825.312(e): an employer may delay restoration until the employee submits a required fitness-for-duty certification "unless the employer has failed to provide the notice." No notice, no delay.
Details worth knowing:
- Uniform policy: The requirement must come from a uniformly applied policy or practice for similarly situated employees, meaning the same occupation and the same serious health condition (§ 825.312(a)).
- Handbook exception: If your handbook or other written leave documents clearly state that a fitness-for-duty certification will be required in specific circumstances, written notice with the designation notice is not required, but oral notice is, no later than with the designation notice (§ 825.300(d)(3)).
- Intermittent leave: You may not require a certification for each intermittent absence. Where reasonable safety concerns exist, you may require one up to once every 30 days, and you must tell the employee so "at the same time it issues the designation notice" (§ 825.312(f)).
- Scope and cost: The certification may address only the condition that caused the leave, at the employee's cost (§ 825.312(b), (c)).
When the Facts Change
If the information in the designation notice changes, for example the employee exhausts the entitlement, you must give written notice of the change "within five business days of receipt of the employee's first notice of need for leave subsequent to any change" (§ 825.300(d)(5)).
Retroactive Designation Under § 825.301
Missed deadlines happen. Section 825.301(d) provides the path back:
If an employer does not designate leave as required by § 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by § 825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee.
And separately: "In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave."
So the test for a unilateral retroactive designation is harm. Section 825.301(e) gives two examples that draw the line:
- No harm likely: The employer failed to designate, but the employee's own serious health condition would have kept him or her out of work during that period regardless. The employee "may not be able to show" harm.
- Harm possible: An employee took leave to care for a child, believing it would not count against the FMLA entitlement, and had planned to save that entitlement to care for a spouse after a surgery scheduled for later. The employee may be able to show harm, for instance by showing that he or she "would have arranged for an alternative caregiver" had the leave been designated on time.
When you discover an undesignated leave:
- Gather the dates and the reason, and ask the employee whether he or she would have done anything differently had the leave been designated on time. Under § 825.301(c), such discussions and the decision "must be documented."
- If there is no harm, or the employee agrees, send the designation notice now, stating the dates designated and the amount counted.
- If the employee identifies real harm, involve counsel before counting the time, and keep the records of the dispute (§ 825.500(c)(7)).
Can the Employee Decline the Designation?
Employees sometimes ask to "save" their FMLA leave and use paid time off first. Form WH-382 states DOL's position in Section I: once an eligible employee communicates a need for leave for a 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." Paid leave runs at the same time; it does not come first. Before relying on a different interpretation, check whether courts in your jurisdiction have held that an employee may affirmatively decline FMLA leave, and consult counsel.
What Errors Cost
Section 825.300(e): failure to follow the notice requirements "may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights." The employer may be liable for compensation and benefits lost, other actual monetary losses, and equitable relief "including employment, reinstatement, promotion, or any other relief tailored to the harm suffered." The practical costs:
| Error | What it leads to |
|---|---|
| No designation notice sent | Dispute over whether absences counted; exposure if the employee was harmed; attendance discipline that may rest on protected time. |
| Notice sent late | Retroactive designation is available only if the delay caused no harm, or by agreement. |
| Fitness-for-duty box not checked | Restoration cannot be delayed for the certification. |
| Essential functions not attached | The provider need only certify the employee is able to resume work, not address specific functions. |
| Paid leave substitution not stated | Dispute over whether paid leave and FMLA ran together. |
| Non-qualifying leave never addressed | Employee assumes protection; a later termination looks like interference. |
| Designation used to count FMLA absences under a no-fault attendance policy | Prohibited by § 825.220(c). |
Many of these start on day one. See how to classify leave requests from day one and employer rights under the FMLA and their limits. Designation gets harder when the same absence is covered by the ADA, a state leave law, or workers' compensation. That coordination is what the Leave and Accommodation Management course teaches, through case studies and interactive exercises over two days.
Frequently Asked Questions
What is an FMLA designation notice?
It is the employer's written notice telling the employee whether leave will be designated and counted as FMLA leave, how much will be counted, whether paid leave runs at the same time, and whether a fitness-for-duty certification will be required. DOL's optional Form WH-382 is the model.
How long does an employer have to send the designation notice?
Five business days, absent extenuating circumstances, from the point the employer has enough information to determine whether the leave is for an FMLA-qualifying reason. That is usually receipt of a complete and sufficient certification.
Does the designation notice have to be on Form WH-382?
No. The form is optional. The notice must be in writing and contain the required information. If leave is not being designated, a simple written statement is enough.
Can an employer designate FMLA leave retroactively?
Yes, with appropriate notice, provided the failure to designate on time did not cause harm or injury to the employee. The employer and employee may also agree to retroactive designation whenever the leave would qualify.
What happens if the employer never sends a designation notice?
The failure may be interference with FMLA rights, with liability for losses caused by the violation and equitable relief. The employer also loses the ability to delay reinstatement for a fitness-for-duty certification it never gave notice of.
Is a new designation notice needed for every intermittent absence?
No. One notice is required per qualifying reason per 12-month period.
The Bottom Line
Date-stamp the certification when it arrives, send the designation notice within five business days of having enough information, complete every section, check the fitness-for-duty box if you intend to require a release, keep the notice with your FMLA records for at least three years (§ 825.500(b)), and fix a missed deadline openly with the employee.
The FMLA Compliance Checklist and FMLA FAQs are quick references, and the FMLA Guide links the rest of this series. When designation decisions involve several laws at once, the Leave and Accommodation Management course gives experienced administrators structured practice.
This article is general education, not legal advice for a specific situation.
