The FMLA requires communication between employers and their employees. One aspect of that communication is various notices that employers are required to provide. Employers that are covered under the FMLA must give employees certain notices regarding the FMLA. An employer's failure to give all required FMLA notices may give rise to employment law claims against the employer under the FMLA.
First, all covered employers have to post a general notice concerning the FMLA. The poster provides information similar to that given on our firm's FMLA Law webpage. The poster must be displayed in a conspicuous place, like a break room or other common gathering area, where employees and applicants for employment can read it. Second, employers with employees who become eligible for FMLA time must provide the employee with an additional general FMLA notice that contains language similar or identical to that found on the FMLA poster (this notice may be provided in the employee handbook or in other written material given to the employee when the employee makes an FMLA leave request), tell the employee about the employee's eligibility status and FMLA rights and responsibilities, and notify the employee whether the requested leave will be covered by the FMLA and the amount of time that'll be deducted from the employee's FMLA leave entitlement.
An employee's FMLA eligibility is determined, and the employer must provide notice of FMLA eligibility status to the employee, the first time the employee requests FMLA leave in the rolling 12-month leave period. The eligibility notice may be written or verbal. Regardless of the notice's format, it must be given to the employee within five business days of the initial FMLA leave request or when the employer acquires knowledge that an employee leave may be for an FMLA-qualifying reason, inform the employee of the employee's eligibility for FMLA protection, and explain why the employee is not eligible for FMLA time is that's the employer's determination.
Every time an employer is required to give an FMLA eligibility notice to an employee, it's also required to provide the employee with a "rights and responsibilities notice." The FMLA rights and responsibilities notice is intended to educate employees about their obligations regarding FMLA leave and the possible consequences of shirking any of those obligations. The rights and responsibilities notice must be written. This notice must include, when applicable, a notice that the leave may be eligible for FMLA protection, the beginning and end of the rolling 12-month period for the employee's FMLA leave entitlement, any requirements for the employee to provide an FMLA certification and the possible consequences if the employee fails to provide an FMLA certification, information regarding the use of paid leave versus unpaid leave, information concerning continuation of health benefits while on FMLA leave, and the employee's right to job restoration upon return from the FMLA absence.
Employers must also provide their employees with written "designation notices" once a decision about FMLA eligibility has been made. A designation notice has to be given to the employee within five business days of the date that the employer has enough information to determine whether the leave is eligible for FMLA protection. A designation also has to state the employer's determination of the employee's FMLA eligibility, give notice of whether the employee will be required to use paid leave to cover the FMLA absence, and identify the amount of FMLA time that will be deducted from the employee's FMLA entitlement. If the employer determines that the employee is not eligible for FMLA leave, nothing more is required for the designation notice than a written statement that the leave does not qualify for FMLA protection and will not be designated as FMLA leave.
An employer's failure to comply with all applicable notice requirements may constitute interference with, restraint, or denial of the exercise of an employee’s FMLA rights and expose the employer to liability under the Family and Medical Leave Act. Please visit our Family And Medical Leave Act page for additional information or contact us if you have an FMLA situation that you'd like to discuss.By Harley Erbe