The FMLA contains several notice requirements that employers must be aware of when an employee may be eligible for FMLA leave. These notifications have different requirements and can result in different risks to an employer. This article addresses the notice requirements under the FMLA and the risks associated with failure to provide required notice.
The General Notice Requirement
The general notice requirement includes two types of notice. The first is the posting requirement, which is satisfied by an employer displaying a poster in plain view that all workers and applicants can see. The Department of Labor (“DOL”) provides a poster on its website that employers can use. Employers are not required to use the DOL poster but if a different format is used, it must at least contain all the information in the DOL poster. Failure to meet the posting requirement can result in a civil penalty of $178. The second aspect of the general notice requirement can be satisfied when an employer provides the same information found on the DOL poster in its employee handbook. If the employer does not utilize a handbook, the information must be distributed to new employees when they are hired.
Eligibility Notice and Rights and Responsibilities Notice Requirements
When an employee seeks FMLA leave, the employer is required to provide notice of whether the employee is eligible within five business days of the request for leave or when the employer becomes aware an employee may require leave for an FMLA-qualifying reason. The eligibility notice may be either oral or in writing. However, a written notice is the best practice. The eligibility notice must inform the employee of their eligibility status. If the employee is not eligible, the notice must provide at least one reason why. Every time an employer provides the eligibility notice, the employer must also provide the employee with the rights and responsibilities notice. The DOL form rights and responsibilities notice can be found here.
The Designation Notice
When an employee is eligible for FMLA leave, the employer must designate the leave as FMLA-qualifying and provide notice of the designation to the employee. Once an employer has enough information to determine if the leave qualifies under the FMLA, the designation notice must be provided within five business days. The designation notice is required for each FMLA-qualifying reason the employer designates. The notice must also include any substitution of paid leave or fitness for duty requirements as well as the amount of leave counted against the employee’s FMLA leave balance, if it is known. If the requested leave does not qualify under the FMLA, then the employer must provide a written statement that the leave will not be designated as FMLA. The DOL form designation notice can be found here.
Failure to Provide Notice Can Result in Litigation
An employer’s failure to provide eligibility notice, rights and responsibilities notice, or the designation notice can expose the employer to liability. Cases analyzing the failure to provide proper notice seek to determine if the failure constitutes an interference with, restraint, or denial of an employee’s FMLA rights. Even if it is ultimately determined that such rights were not infringed, such litigation is fact-intensive and costly. The best approach is to ensure all notices are provided.
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