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What Are The FMLA Notice Requirements?

What Are The FMLA Notice Requirements?

The Family and Medical Leave Act of 1993 (FMLA) imposes several written notification requirements on employers. The basic written notification requirements are:
  • Posted notice
  • General notice
  • Eligibility notice
  • Rights and responsibilities notice
  • Designation notice
Details on each are included below.
  • Posted Notice
    To satisfy the posted notice requirement, certain basic information about the FMLA must be prominently posted in the workplace. This notice is intended to assist employees in being aware of the existence of the FMLA, and in understanding their rights under it.

    The Department of Labor (DOL) makes available a model notice for this purpose. A copy of the current poster (WH-1420) poster can be found at https://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf and in Spanish at https://www.dol.gov/whd/regs/compliance/posters/fmlasp.pdf.

    This poster contains a general overview of various FMLA issues, including the following:

    • Reasons for taking leave
    • Advance notice and medical certification
    • Job benefits and protection
    • Unlawful acts by employers
    • Enforcement

    The DOL requires that the notice be posted prominently, at all the employer's worksites, where it can be readily seen by employees and applicants for employment. It must be large enough to be easily read and contain fully legible text.

    If the employer's workforce has a "significant" portion of workers who are not literate in English, the notice must be provided in a language in which the employees are literate. DOL provides posters in English and Spanish.

    The regulations require that the notice be posted by all employers subject to the law, even if there are no eligible employees (e.g., at small worksites with no eligible employees). Consider an employer with two locations 100 miles away from each other with 30 employees at each location. The employer is a covered employer because it has more than 50 employees and must post the notice at both worksites, even though due to the application of the small worksite rule, there are no eligible employees at either worksite!
  • General Notice
    The general notice provides information about the FMLA that must be distributed to each employee. Typically, this notice requirement is satisfied through the FMLA information reflected in an employer's employee handbook.

    For employers with an employee handbook or other written guidance to employees about benefits or leave rights, this notice may be provided in that handbook or other document. Presumably, this information would be provided by the employer to the employee when he or she is hired.

    For employers without written policies, manuals or handbooks describing employee benefits and leave provisions, written guidance about FMLA must still be provided to the employee. The general notice requirement can be met by providing a copy of the general notice to each new employee upon hiring. The regulations provide that employers can use a copy of the Department of Labor (DOL) FMLA Poster to comply with this requirement.
    Administrative Tip:
    If your company has an employee handbook, an easy and efficient way to comply with the general notice requirement is to take the text of the DOL's FMLA Poster and incorporate it into the employee handbook, adding to it any information about FMLA rules specific to your organization (i.e., rules regarding concurrency of paid leave, leave year calculation, etc.). Provide this handbook to all employees upon hire, and any time there is a specific request.
  • Eligibility Notice
    The eligibility notice is a notice that must be provided to an employee when he or she requests FMLA leave or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason. Absent extenuating circumstances, this notice must be provided within five business days. The eligibility notice must state whether the employee is eligible for FMLA leave, and if not eligible, the notice must state at least one reason for not being eligible (e.g., not employed enough months, not enough hours worked, employed at an exempt small worksite, etc.)
  • Rights And Responsibilities Notice
    The rights and responsibilities notice provides written notice of the specific expectations and obligations of the employee and the consequences of failing to meet those requirements. It must be provided each time an eligibility notice is required. This notice provides very specific information related to the employee's unique FMLA leave.

    In general, the rights and responsibilities notice must describe the specific expectations and obligations of the employee during the FMLA leave, and also explain the consequences of a failure to meet these obligations. The detail that must be included (as appropriate) is as follows:

    • That the leave may be designated as FMLA leave and counted as FMLA leave
    • Any requirements for the employee to furnish medical certification of a serious health condition, serious injury or illness, or qualifying exigency, and the consequences of failing to do so
    • The employee's right to run available paid leave concurrently with FMLA leave, whether the employer requires such concurrency, and any conditions related to this concurrency, and the employee's ultimate entitlement to take unpaid FMLA leave if the employee does not meet the requirements for paid leave
    • Any requirement for the employee to make premium payments to maintain health benefits, the arrangements for making these payments, and the possible consequences of failure to make these payments on a timely basis (in other words, the circumstances under which coverage would lapse for nonpayment of premium)
    • If the employee is a "key employee," the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial
    • The employee's right to maintenance of certain benefits during the FMLA leave and restoration to the same or an equivalent position upon return from the FMLA leave
    • The employee's potential liability for payment of health coverage premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave

    The regulations provide a model rights and responsibilities notice, combined with the eligibility notice, that employers may use as a prototype on which employers to base their own notices in order to satisfy this requirement. The current edition of the model notice can be found at http://www.dol.gov/whd/forms/WH-381.pdf

    The notice may, but is not required to, include other information, as appropriate. For instance, the notice may describe whether the employer will require periodic reports of the employee's status and intent to return to work. Additionally, the regulations require that notices be accompanied by any required certifications
  • Designation Notice
    In all circumstances, the employer is responsible for designating leave as FMLA-qualifying leave and giving notice to the employee of such designation.

    This notification is required both: (1) if the leave is designated FMLA leave, and (2) if the leave is not designated FMLA leave.

    If designated as FMLA leave, the designation notice must also include the following:

    • If the employer requires paid leave run concurrently with the FMLA leave
    • If the employer counts paid leave (e.g., workers' compensation, disability leave) as FMLA leave
    • If a fitness-for-duty certification will be required in order to return to work
    • If known, the amount of leave that will be counted as FMLA leave

    The designation must be in writing. The regulations provide a model notice that employers may use as a prototype on which employers may base their own notices in order to satisfy this requirement. This notice can be found at http://www.dol.gov/whd/forms/WH-382.pdf
Administrative Tip:
Nothing precludes an employer from satisfying these notice requirements through one or more combined notices, as long at the requirements of each notice requirement are satisfied. For example, the designation notice is usually combined with the rights and responsibilities notice. And under some circumstances, the eligibility, rights and responsibilities and designation requirements can all be satisfied through a single notice.
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