Employer notice requirements under the FMLA
Employer responsibilities under the Family and Medical Leave Act (FMLA) begin before an employee even requests a leave. The FMLA requires that employers provide general notice to employees about their FMLA rights and responsibilities. These general notices must be posted in the workplace and, if an FMLA-covered employer has any eligible employees, included in employee handbooks so that employees understand their leave rights and the steps they must take to exercise those rights before they need FMLA leave.
On top of that, employers also have specific notice obligations that require them to inform employees of their FMLA rights and responsibilities when employees actually seek FMLA leave (not many employees remember policies and information from when they were first hired!). These notice requirements help increase the likelihood that employees understand and utilize what’s available to them under the FMLA.
FMLA administration for employers
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First, make sure you have the required posters displayed at your worksite. The Department of Labor Wage and Hour Division (the agency responsible for enforcing FMLA) publishes the required FMLA posting.
Tip: Covered employers must display this poster even if they don’t have any FMLA-eligible employees.
Employee handbook FMLA policy
Next, review your FMLA policy. The FMLA policy in your employee handbook must contain, at a minimum, the information provided in the FMLA poster. Here are some of the most important things you need to include:
1. Explain generally what FMLA leave is
FMLA provides eligible employees with job-protected leave for qualifying family and medical reasons. For private sector employers, FMLA is enforced by the U.S. Department of Labor’s Wage and Hour Division. Eligible employees can take up to 12 workweeks of FMLA leave in a 12-month period for certain qualifying reasons that include:
- The birth, adoption or foster placement of a child with the employee
- An employee’s own serious mental or physical health condition that makes the employee unable to work
- To care for the employee’s spouse, child or parent with a serious mental or physical health condition, and
- Certain qualifying reasons related to the foreign deployment of an employee’s spouse, child, or parent who is a military servicemember (Reference DOL Fact Sheet #28M(c) on this point)
- An eligible employee who is the spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness may take up to 26 workweeks of FMLA leave in a single 12-month period to care for the servicemember
Employees have the right to use FMLA leave in one continuous block of time. When it is medically necessary or otherwise permitted (i.e., you allow this as an employer), employees may take FMLA leave intermittently in separate blocks of time, or on a reduced schedule by working less hours each day or week.
2. Explain employee eligibility criteria
Explain that employees must:
- Work for a covered employer
- Have worked for their employer at least 12 months
- Have at least 1,250 hours of service for their employer during the 12 months immediately preceding their leave, and
- Have at least 50 employees within 75 miles of their work location
Tip: There are special rules for employees who do not have a fixed physical worksite, such as outside sales people or remote employees.
3. Explain how employees can request FMLA leave
Explain that employees must:
- Follow their employer’s normal policies for requesting leave
- Give notice at least 30 days before their need for FMLA leave, or, if advance notice is not possible, give notice as soon as possible
- Provide enough information to their employer (and/or their employer’s leave administrator) so they can determine whether the leave qualifies for FMLA protection. Employees do not have to share a medical diagnosis
Tip: Some states, such as California, prohibit employers from seeking medical diagnosis. Check with counsel on any state specific medical confidentiality rules that overlap with FMLA.
- Inform their employer if FMLA leave was previously taken or approved for the same reason when requesting additional leave
- Provide their employer any required certification from a health care provider to verify medical or caregiver leave or any required certification of a qualifying exigency
4. Explain the FMLA’s relationship with other laws
Explain that the FMLA does not affect any federal or state law prohibiting discrimination, or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.
5. Explain your obligations to the employee as their employer
Explain that, if an employee is eligible for FMLA leave, as a company, you must:
- Allow the employee to take job-protected time off work for a qualifying reason
- Continue the employee’s group health plan coverage while the employee is on leave on the same basis as if the employee had not taken leave, and
- Allow the employee to return to the same job, or a virtually identical job with the same pay, benefits and other working conditions, including shift and location, at the end of the employee’s leave
- Not interfere with the employee’s FMLA rights or threaten or punish the employee for exercising their rights under the law. This includes not retaliating against the employee for requesting FMLA leave or cooperating with a WHD investigation.
Explain that, after becoming aware that the employee’s need for leave is for a reason that may qualify under the FMLA, you must:
Confirm whether or not the employee is eligible for FMLA leave and provide written notice of:
- Any determination that an employee is eligible
- The employee’s FMLA rights and responsibilities, and
- How much of the employee’s requested leave, if any, will be FMLA-protected leave.
6. Provide employees additional information on ways they can exercise FMLA rights
- Provide employees the DOL’s telephone number and website URL so they can find more information about FMLA.
- Tell employees they may file a complaint with the DOL’s Wage and Hour Division or file a private lawsuit against you in court if they believe their rights under the FMLA have been violated.
As always, check with your legal counsel to ensure that your FMLA and other leave and accommodation policies fulfill all federal, state and local law requirements, and are fully aligned with your other employment policies and benefits. This checklist generally applies to private sector employers. Please note that there are special FMLA requirements for certain school employees, airline flight crew personnel, and employees covered by collective bargaining agreements.
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