By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association
he U.S. Department of Labor’s regulations, which became effective January 16, 2009, make several changes to the Family and Medical Leave Act’s notice requirements on the parts of both employers and employees. Employers must continue to post a general notice of employee rights and responsibilities. (Form WH-381) In addition, however, if an employee requests FMLA leave, there are more stringent requirements for notifying such persons of their rights. Once a request for FLMA leave has been received, there are two types of notice that an employer must provide in response. The regulations require that employers provide notices concerning both eligibility and designation. The regulations recommend using two optional forms. Form WH-381 (Eligibility Notice) advises employees of their eligibility http://www.dol.gov/esa/whd/fmla/finalrule/WH381.pdf, and form WH-382 (Designation Notice) designates their leave as qualifying for FMLA leave http://www.dol.gov/esa/whd/forms/WH-382.pdf.
The regulations allow employers to require employees to follow call-in procedures for unforeseeable or intermittent absences that may qualify for FMLA leave. Failure to do so will permit employers to delay or deny FMLA leave. If an employee fails to follow the employer’s call-in procedures, except under extraordinary circumstances, such as when an employee is hospitalized and his or her spouse calls the supervisor to report the absence, unaware that the attendance policy requires that the human resources department be called instead of the supervisor, the employee may be subject to whatever discipline the employer’s rules provide for such a failure and the employer may delay FMLA coverage until the employee complies with the rules. However, if the employer chooses to delay the employee’s FMLA leave until the employee complies with the call-in procedure, any leave that is not FMLA-protected may not be counted against the employee’s FMLA entitlement. An employer may treat the employee’s failure to comply with the call-in rule in the same manner it would normally handle such an infraction.
There are also increased notice obligations on employees. The regulations clarify what an employee must say to constitute “sufficient notice” of the need for leave. Where unforeseeable leave is needed and an employee is not able to give the employer 30 day’s notice, such person must respond to any of the employer’s questions about why the need was unforeseeable.
Employer Notice Requirements
Just as the original rule required, employers must post a notice explaining the FMLA’s provisions and complaint filing procedures. An employer is not required to have an employee handbook or written policies. However, the general notice information must be included if an employer has written policies on leave and benefits or an employee handbook. For employers that do not have an employee handbook or other written materials, the employer must give the general notice to each new employee when such individual is hired.
So long as the information is made accessible to all applicants and employees, employers may publish the general information electronically. In cases where there are some workers without access to an employer-provided computer, the information must be posted in paper form in a central location where it can be seen and read. Note: the notice still must be posted in a location viewable by applicants.
Failure to post the general notice may result in a fine of $110. The DOL has issued a prototype general notice; however, employers are free to draft their own and include employer-specific information, as long as all of the information in the DOL form is included (http://www.dol.gov/esa/whd/regs/compliance/posters/fmlaen.pdf).
Employers must provide employees who request FMLA leave with two other individualized forms of notice. First, they must notify the applicant either that they are or are not eligible. Notice of the employee’s rights and responsibilities must be provided at the same time the eligibility notice is given. Subsequently, they must notify such person whether the leave has or has not been approved and designated as FMLA qualified. An employer is to notify an employee of any change in the information contained in the notice of rights and responsibilities within five business days of the first notice of the need for leave following any change.
The rights and responsibilities notice is required to state that the leave may be designated and counted against the employee’s annual FMLA entitlement and the applicable 12-month period the employer uses for determining FMLA leave entitlement. It also must state whether the employee is required to provide certification of a serious health condition or qualifying exigency in the case of military family leave. The medical certification form may be included with the notice of rights and responsibilities, although employers are not required to do so.
When an employee requests FMLA leave, or the employer becomes aware that an employee’s leave may qualify under the FMLA, “absent extenuating circumstances”1 the employer must notify the employee of his or her eligibility to take FMLA leave within five business days. Note: this is a change from the original rule that specified that the employer had two days to do so. The eligibility notice addresses only whether the employee meets the statutory eligibility criteria for leave: has worked 12 months for a minimum of 1,250 hours, and for non-governmental employers, at a worksite with 50 or more employees within a 75-mile radius. Note: all municipal employers are governed by the FMLA.
This notice is to be given at the beginning of the first FMLA-qualified leave in a 12-month period. It must state whether the employee is eligible for FMLA leave and if not, it must give at least one reason why not. Eligibility notice may be oral or written and the employer may use DOL’s prototype form (Form WH- 381).
If the employee has a subsequent need for FMLA leave during the 12-month period and his or her eligibility status has not changed, the employer does not need to provide another eligibility notice. If the employee’s eligibility status has changed, however, the employee must receive notice of the change in status within five business days, again “absent extenuating circumstances.”2
Designation of Leave
The second type of notice employers must now give is the designation notice.3 This informs the employee whether the particular leave requested will be designated as FMLA leave. Included along with the designation notice is the requirement to inform employees whether they have FMLA leave available. After obtaining sufficient information to determine whether the requested leave qualifies for FMLA leave, employers have five business days to give employees this notice. Form WH-382 (Designation Notice) designates their leave as qualifying for FMLA leave. Nothing prevents employers from giving an employee both the eligibility and designation notices at the same time when the employer has adequate information to designate leave as FMLA-qualifying immediately after receiving notice that the employee needs leave.
The designation notice must be provided even in cases where the employer finds the requested leave not qualify under the FMLA. The notice should tell the employee why the leave was not deemed qualifying, such as insufficient information or if it was requested for a non-qualifying reason. Where the leave is not designated as qualifying under the FMLA, an employee may be notified using a simple written statement of that fact.
During any applicable 12-month period, an employer need only provide one designation notice for each qualifying FMLA reason for leave. The designation notice must contain the number of hours, days or weeks that will be designated as FMLA leave. If the exact amount of leave is unknown and expected to continue for an extended period of time, the employer should provide this notice every 30 days.
If the employer intends to send the employee for a fitness for duty examination, this notice also must include information about a list of essential job duties.
If the information on the designation notice changes, the employer is required to notify the employee of the change within five business days of receipt of the employee’s first notice of the need for leave subsequent to any change.
If an employee demonstrates harm as a result of the employer’s failure to provide eligibility or designation notice, an employer may be liable for the harm suffered. Examples include lost compensation and benefits, other monetary losses and appropriate equitable or other relief, including employment, reinstatement or promotion.
While retroactive designation may occur, if it is not done in a timely fashion, and if an employee establishes that he or she suffered harm as a result of the employer’s actions, a remedy may be available.
Employee Notice Obligations
The information necessary to put an employer on notice that requested leave may qualify under the FMLA will vary depending on the circumstances. The required information from an employee may include such things as:
- that the condition renders the worker unable to perform the functions of his or her job, or
- that the condition renders a family member unable to perform daily activities if the leave is to care for a covered family member with a serious health condition, or
- that the leave is related to a pregnancy, or
- the employee was hospitalized overnight.
In general, the regulations specify that employees should give notice to their employers of the need for leave “promptly” with the statement that it generally should be practicable for the employee to provide notice of unforeseeable leave within the time prescribed by the employer’s usual and customary notice requirements.
It is an employer’s obligation to inquire if it needs additional information to determine whether the leave qualifies for protection under the FMLA.
An employee is obligated to make a reasonable effort to schedule leave—any type of intermittent leave—so it does not unduly disrupt the employer’s operations.
The 30-day advanced notice requirement for foreseeable leave does not apply to qualifying exigency leave when a covered family member is called to active duty in the Armed Forces. Employees do need to provide information that the leave is related to a family member’s Armed Forces service.
Employees seeking leave for a previously certified reason are required to inform the employer that the leave is for a condition or military family reason that was previously certified or for which the employee has previously taken FMLA leave. ■
129 C.F.R. §825.300(b).
2229 C.F.R. §825.300(b)(3).
3329 C.F.R. §825.300(d).