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On Jan. 16, the U.S. Department of Labor’s new regulations for the Family and Medical Leave Act took effect. The new regulations impose a number of new responsibilities on employers and employees; among those changes are new notice requirements. Covered employers (those who have 50 or more employees within 75 miles of a work site) need to work quickly to make sure they comply with these and other new requirements.

The principal notice requirements are the general notice (the “Employee Rights and Responsibilities” notice), the eligibility notice (the “Notice of Eligibility and Rights and Responsibilities”) and the qualifying leave notice (the “Designation Notice”). One helpful way to understand the notice requirements is to think about leave in three stages – the beginning of employment, the initial request and the time when all the information is at hand.

When employees are first hired, they may not understand fully their rights and responsibilities. Early notice helps them understand their FMLA rights and the steps they need to take to preserve those rights. This is accomplished through a general “Employee Rights and Responsibilities” notice.

When an employee requests leave, more information is needed. This may include whether the employee is even eligible to take the leave, and whether medical information must be provided. This is accomplished through the “Notice of Eligibility and Rights and Responsibilities” notice.

After the employee provides information about a possible leave and learns about eligibility and whether provision of medical information is required, there is an additional “decision” notice that gives the employee confirmation about whether the leave is qualifying, the availability of substituted leave and requirements for returning to work.

The regulations are considerably more detailed on each form of notice.

Employee Rights and Responsibilities notice

Every covered employer must post the general notice where employees can see it (electronic posting is sufficient). There must be a posting even if there are no employees presently eligible, as long as the employer is covered.

Every employer who has eligible employees must also ensure that the same information is distributed to employees either by including it in an employee handbook if there is one, or by providing a copy of the general notice at the time of hire. There is a template notice available online at www.dol.gov.

If a substantial number of employees don’t speak English, the notice should be translated. Using the Department of Labor’s form is sensible because it includes all the required information.

Notice of Eligibility and Rights and Responsibilities

General information is helpful, but employees who request leave need to know more.
FMLA has always viewed “request” broadly; an employee requests leave by asking for it, or by providing enough information to put the employer on notice that the leave may be FMLA-qualifying. When that occurs, the regulations require that the employee receive notice of eligibility or non-eligibility (with at least one reason) within five days.

This notice can be oral, but sensible employers will issue it in writing and can use the Department of Labor’s form. It too must be translated if a substantial number of employees don’t speak English.

The template form also includes information stating whether a medical certification will be required. At the same time, the employer must provide a written Rights and Responsibilities notice that identifies whether the leave reduces FMLA, whether paid leave may be required to be used, whether a medical certification will be required, and requirements to pay health care premiums. Again, there is a prototype form.

Designation Notice

As soon as the employer has enough information, it must provide a notice designating the leave as qualifying or not qualifying, whether the employee must meet fitness for duty requirements before returning, and the employer must identify the amount of FMLA time charged to the leave.

Parts of the designation must be written, and there is a form for this notice as well.
Even though the regulations permit some notices to be oral, it is always much harder to prove that oral notices were given. Employers taking advantage of the right to give oral notices should document that they were given.

Employers can find the regulations online at: www.dol.gov/federalregister/PdfDisplay.aspx?DocId=21763. It’s a long document, but the first 140 pages describe the regulatory process and the commentary that the agency received. The regulations make up only the last 60 pages or so, and all those forms are included.

Paula Barran, a founding partner at Barran Liebman LLP, has been practicing labor and employment law since 1980. In addition to regularly providing employer advice and solutions, she handles employment litigation in state and federal courts, labor disputes and employment arbitrations.