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The FMLA designation notice is the written notice an employer must give an employee stating whether leave is approved as FMLA-protected and how much time will count against the annual entitlement. It is generally due within five business days of having enough information to make the determination.
The FMLA requires four notices, and the designation notice is the last of them. After the eligibility notice, the rights and responsibilities notice, and any certification exchange, the employer must tell the employee in writing, using Form WH-382 or an equivalent, whether the absence is designated as FMLA leave. The notice states the amount of leave that will be counted if that is known; if it is not, the employer must report the hours, days, or weeks counted upon request, no more than once every thirty days.
The designation notice is also where the employer imposes conditions: a requirement to substitute paid leave, a fitness-for-duty certification before return, and the essential functions list if that certification must address them. Conditions left out of the notice generally cannot be enforced later.
Designation is the employer's job, not the employee's choice. The Department of Labor has been explicit that an employer may not delay designation or let an employee decline FMLA protection in order to bank the entitlement while burning paid leave. Once the employer knows leave qualifies, it must designate it. Failing to designate promptly can support an interference claim where the employee is harmed, for example by exhausting job protection they believed they still had.
Once the employer has enough information to know the absence qualifies, it must designate the leave and tell the employee in writing rather than sitting on the decision. The notice normally goes out on Form WH-382 or an equivalent document. Delaying while the employee burns paid leave is precisely what the rules prohibit.
No. Designation belongs to the employer, not to the employee. Once the employer knows an absence qualifies, it has to be counted against the entitlement even if the employee would rather use paid leave first and preserve the job-protected weeks for later. Letting an employee opt out creates exposure rather than goodwill.
You generally cannot enforce it later. The designation notice is where requirements such as substituting paid leave, a fitness-for-duty certification, and the essential functions list get imposed. A condition raised for the first time when the employee tries to come back is usually too late to apply to that leave.