FMLA NOTICES: HOW YOU MAY BE DOING IT WRONG
The Family and Medical Leave Act (FMLA) provides for job protected leave for employees with certain qualifying medical and/or family reasons. It’s important for employers to understand their obligations under FMLA, including its notice requirements and timelines. Failure to follow FMLA notice requirements can constitute interference, restraint, or denial of an employee’s FMLA rights.
All covered employers — private employers with 50 or more employees, all public employers regardless of size, and elementary and secondary schools regardless of size — are required to provide employees with a general notice about FMLA. To meet this requirement, employers must display a poster notifying of FMLA’s provisions, including how to file a complaint. This poster must be displayed even if the employer has no eligible employees. Willful violation of this posting requirement can result in a civil monetary penalty of up to $204.
If the employer has any eligible employees, they must also integrate the general notice into their employee handbook (or other written material about leave and benefits provided to employees). This general notice, at minimum, must provide the same information that is contained in the poster. The absence of an employee handbook or written leave materials does not excuse an employer from this requirement.
Notice of Eligibility & Rights and Responsibilities under FMLA
Covered employers are required to provide employees with a notice of eligibility and notice of rights and responsibilities within five (5) business days of the initial request for leave for a FMLA-qualifying reason or when the employer acquires knowledge that leave may be for a FMLA-qualifying reason. While technically two separate notice requirements, they must be provided together, which is why the Department of Labor’s sample form combine the two into one notice.
It’s a common misconception that employers are not required to provide the notice of eligibility to an employee they know is not eligible for FMLA. However, the regulations state that an employer must notify an employee of their eligibility for FMLA, including when they are ineligible. If an employee is ineligible for FMLA, the notice must provide at least one reason why they are ineligible. The only time an employer is not required to provide the notice of eligibility is when the employee takes leave for the same FMLA-qualifying reason or a different FMLA-qualifying reason where their eligibility hasn’t changed as long as it is within the same leave year.
While employers are permitted to create their own notices for this purpose, the Department of Labor provides a sample form for employers to use. That form (WH-381) can be downloaded from the Department of Labor’s website.
Covered employers are required to provide employees with a notice of designation within five (5) business days of having enough information to determine whether the leave is FMLA-qualifying or not. This notice, like with the notice of eligibility, needs to be provided to an employee both when leave is FMLA-qualifying and when its not. This notice must be provided for each FMLA-qualifying reason within the leave year.
In addition to indicating whether the leave will be designated as FMLA leave, the designation notice also specifies the amount of leave that will be counted against the FMLA entitlement and whether a fitness-for-duty certification will be required for the employee to return from leave.
While employers are permitted to create their own notice for this purpose, the Department of Labor provides a sample form for employers to use. That form (WH-382) can be downloaded from the Department of Labor’s website.
Certification of Health Care Provider or Military Leave
When an employee requests FMLA leave for a serious health condition (their own or that of a family member) or for military reasons, employers are often most concerned with getting certification to substantiate the need for leave. However, the FMLA certification process is optional; certification is simply a tool that allows employers to obtain the necessary information to make an informed FMLA determination.
Certification can be provided in various formats, including official documentation from a healthcare provider or military authorities. As long as employees supply comprehensive and adequate information for certification, employers are required to accept it in the form it is provided.
The Department of Labor provides sample certification forms that employers can use. Those forms can be downloaded from the Department of Labor’s website.
Members who have questions regarding their FMLA obligations should reach out to our experienced team of HR and legal professionals. All NAE members have on-going and easy access to real world solutions and HR expertise through our HR Hotline. Not a member? Join today to begin enjoying the benefits of membership.
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