The Required Notice for FMLA Leave
On February 13, 2008, Victoria Lipnic -- then-assistant secretary of the Department of Labor's Employment Standards Administration -- stated that the intent of the proposed Family and Medical Leave Act notification changes was "to foster better communication between workers who need FMLA leave and employers who have legitimate staffing concerns and business needs." The final changes enacted on November 17, 2008, strengthened employee notification requirements and increased the employer's obligation to inform employees of their rights and responsibilities.
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Employee Notification
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Whenever an employee has foreseeable knowledge of the need to take FMLA leave, he is required to inform his employer no later than 30 days prior to the leave date. If the foreseeable leave is less than 30 days from the leave date, the employee must inform the employer as soon as possible. When a FMLA leave is required for an unforeseeable event, the employee must let the employer know as soon as possible. If the employee is incapacitated, the employer can accept the notification from an adult who is responsible for representing the employee. Employers have the right to waive the employee notification requirements.
FMLA Poster
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Employers with 50 or more employees working 12 weeks or more in the current year or the prior year must display a FMLA poster informing employees of their FMLA rights. The poster includes procedures for filing a FMLA violation complaint with the Wage and Hour Division of the U.S. Department of Labor. Employees and job applicants must be able to see and read the information on the poster. Failing to display or improperly posting the FMLA information may prevent an employer from addressing an employee's failure to provide proper notification.
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Eligibility Notice
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The employer has five days to notify an employee of her FMLA eligibility status. The employer is required to inform her that she is eligible, even if she has not requested FMLA leave. If an employee submits a request for FMLA leave and she is not eligible, her employer has to state why she is not eligible. If she is ineligible because of a deficiency in length of service, hours worked or worksite coverage, this information has to be included in the notification. Oral notification is acceptable.
Employee Rights and Responsibility Notice
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The employer is required to provide the employee with a written notice of the employee's rights and responsibilities. This includes the employee's job and group health insurance protection rights, the amount of FMLA time that is available, whether the employee is required to provide a medical certification for a serious health condition or a qualifying exigency certification when a service member is call to active duty and the consequence of failing to return certifications in a timely manner. Employers may use U.S. Wage and Hour Division Form WH-381 -- Notice of Eligibility and Rights and Responsibilities (Family Medical Leave Act) or an employer-generated likeness.
Designation Notice
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The employer has five days after an employee's request for leave to designate the absence as FMLA leave or non-FMLA leave. The designation must be in writing, and the employer must inform the employee of any special conditions. Special conditions include the requirement to exhaust any available paid leave while taking FMLA leave or the stipulation that the employee must provide a fitness-for-duty certification before returning to work. Employers may use U.S. Wage and Hour Division Form WH-382 -- Designation Notice (Family Medical Leave Act) or an employer-generated likeness.
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References
- U.S. Department of Labor: Statement Of Assistant Secretary Victoria A. Lipnic, Feb. 13, 2008
- Electronic Code of Federal Regulations: 29 CFR Part 825 Subpart C - Employee and Employer Rights and Obligations Under the Act
- U.S. Department of Labor Employment Guide: Family and Medical Leave
- U.S. Department of Labor - Wage and Hour Division: FMLA Poster
