Family and Medical Leave Act

Covered Employers

Private-sector employers with 50 or more employees
Public agencies, including state and federal employers
Local educational agencies.

Eligible Employees

Works for a covered employer
Has worked for the employer for at least 12 months
Has at least 1,250 hours of service for the employer during the 12-month period immediately before the FMLA leave
Works at a location where the employer has at least 50 employees within a 75-mile radius.

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Notification Requirements

General Notice Eligibility Notice Rights and Responsibilities Notice Designation Notice

General Notice

Covered employers must prominently post a general FMLA notice where it can be readily seen by employees and applicants for employment. The general notice explains an employee’s rights and responsibilities under the FMLA and provides information concerning the procedures for filing complaints of violations. The DOL has developed a model general notice for employers to use.

Covered employers must post this general notice even if no employees are eligible for FMLA leave. Electronic posting is sufficient to meet this posting requirement. An employer that willfully violates this posting requirement may be subject to a fine of up to $169 for each separate offense. In addition, covered employers that have eligible employees must provide this general notice to each employee by:

Including the notice in any written guidance to employees, such as an employee handbook, that explains other employee benefits or leave rights, if such written guidance exists; or
Distributing a copy of the general notice to each new employee upon hiring.

In either case, this may be done electronically.

Eligibility Notice

When an employee requests FMLA leave, or when the employer learns that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days, absent extenuating circumstances.

The eligibility notice must state whether the employee is eligible for FMLA leave, and, if not eligible, the notice must state at least one reason why the employee is not eligible. The DOL has provided a sample eligibility notice for employers to use.

Rights and Responsibilities Notice

Each time the eligibility notice is provided, employers must provide a written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. This notice may be accompanied by any required certification form. The DOL has provided a sample rights and responsibilities notice for employers to use.

The rights and responsibilities notice must include, as appropriate, the following information:

A statement that the leave may be designated and counted against the employee’s annual FMLA leave entitlement and the applicable 12-month period for FMLA entitlement;
Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness or qualifying exigency arising out of covered active duty and the consequences of failing to do so;
A description of the employee’s right to substitute paid leave and whether the employer will require it and the employee’s entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave;
Any requirement for the employee to make any premium payments to maintain health benefits and related information;
The employee’s status as a “key” employee and related issues of reinstatement;
The employee’s rights to maintenance of benefits during the FMLA leave and restoration to the same or equivalent job upon return from FMLA leave;
The employee’s potential liability for employer payment of health insurance premiums if the employee fails to return to work; and
Other information as appropriate.

If the specific information provided by the rights and responsibilities notice changes, the employer must, within five business days of receipt of the employee’s first notice of need for leave following any change, provide written notice referencing the prior notice and containing any of the information in the notice that has changed.

Employers must responsively answer any questions from employees concerning their rights and responsibilities under the FMLA.

Designation Notice

In all circumstances, the employer is responsible for designating leave as FMLA-qualifying and for giving written notice of the designation to the employee within five business days of receiving sufficient information to grant or deny FMLA leave.

If possible, the notice must include the number of days, hours or weeks that will be counted against the employee’s annual allotment of FMLA leave, and must address whether paid leave will be substituted for any portion of unpaid FMLA leave. The notice must notify the employee if a fitness-for-duty exam
will be required prior to the employee’s return to work as well as a list of essential functions so the health care provider can address these duties in the fitness-for-duty certification. The DOL has provided a sample designation notice for employers to use.

If the information provided by such notice changes, the employer must, within five business days of receipt of the employee’s first notice of need for leave following any change, provide written notice of the change.

If the leave is not designated as FMLA leave because it does not meet the requirements of the FMLA, the notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement.