The final revised FMLA regulations issued by the DOL on November 17, 2008 became effective January 16, 2009. The regulations address the FMLA military family leave entitlements and also include other, significant changes to prior regulations. Some of the changes involving employer notices are described in 29 C.F.R. §825.300 and include:
General Notice –
29 C.F.R. §825.300(a). A covered employer must post on its premises “in conspicuous places where employees are employed” a general notice explaining the FMLA’s provisions and providing information about procedures for filing complaints of violations with the Wage and Hour Division. The general notice also must be provided to each employee of a covered employer with any eligible employees “by providing the notice in employee handbooks or other written guidance to employees concerning employee benefits or leave rights, if such written materials exist, or by distributing a copy of the general notice to each new employee upon hiring.” Id. Electronic posting and distribution may be sufficient to meet the posting and distribution requirements. At Appendix C of the regulations, the DOL has provided a prototype notice meeting the requirements of the content of the general notice.
Eligibility Notice –
29 C.F.R. § 825.300(b). An employer must notify an employee who requests FMLA leave within five business days whether the employee is eligible and, if not eligible, the notice to the employee must provide at least one reason for the ineligibility. Notice may be oral or in writing. For subsequent requests by the same employee during the applicable 12-month period, the employer need not provide another eligibility notice unless the employee’s eligibility status has changed. A prototype written notice form is provided at Appendix D of the regulations.
Rights and Responsibilities Notice –
29 C.F.R. § 825.300(b). Also, “each time” an eligibility notice is provided to an employee, a Rights and Responsibilities Notice must be provided. This notice is incorporated into the prototype Notice of Eligibility and Rights and Responsibilities at Appendix D of the regulations. If certification forms will be required by an employer to substantiate the need for leave, the notice may attach the required forms.
Designation Notice –
29 C.F.R. § 825.300(d). When an employer has enough information to determine whether the leave is being taken for an FMLA-qualifying, the employer must provide written notice to the employee within five business days as to whether the leave will be designated and counted as FMLA leave. The notice must state whether a fitness for duty certificate will be required at the end of the leave. Though the regulations provide that generally, only one designation notice must be given to an employee for each qualifying reason within a twelve-month period, the regulations also provide that if the information changes (such as when leave is exhausted), the employer must issue a written notice of the change within five business days of the employee’s request for leave subsequent to the change. The employer must notify the employee of the amount of leave counted against the employee’s leave entitlement. If the amount of leave is unknown at that time (because, for example, the leave will be unforeseeable intermittent leave), then an employer must provide notice of the amount of leave counted against the employee upon the employee’s request, but no more than one in a 30-day period and only if leave was taken in that period. A prototype designation notice form is provided by the DOL at Appendix E.
Failure to comply with the posting or notice requirements may subject an employer to civil money penalties or other civil liability. A complete copy of the regulations and prototype forms are available at the DOL website.