The Department of Labor recently issued new amendments to the Family and Medical Leave Act (FMLA). Those amendments have added to the notice requirements under the act, creating both a paperwork chore for businesses and a potential legal trap if the required notices are not provided. This Alert summarizes the new notice requirements.
General Notice
The General Notice must be posted by all employers who are covered by the FMLA, whether or not they have eligible employees. This notice, which describes the FMLA and its provisions and provides for a procedure for making a complaint of a violation to the Department of Labor, must be posted in a conspicuous place at the work place, where both employees and applicants are likely to see it.
Additionally, in situations in which a covered employer has at least one employee who is eligible under the FMLA, the General Notice must be provided to all employees by placing it in an employee handbook or other written guidance governing employee benefits that is provided to employees, or by giving a copy of the General Notice to each new employee upon hiring.
Eligibility Notice
The Eligibility Notice must be given to an employee when the employee either requests FMLA leave or the employer has knowledge that the employee’s leave may be for an FMLA qualifying reason within 5 business days of such notice or knowledge. The Eligibility Notice must state whether the employee is eligible for FMLA leave or, if not eligible, the reason(s) why.
Rights and Responsibilities Notice
The Rights and Responsibilities Notice must be given to employees who are going to be on FMLA leave and is to be provided with the Eligibility Notice. It must include such information as the applicable 12 month period being used for the leave, any medical certification requirements, the employee’s right to substitute paid leave, the employer’s requirement that employee substitute paid leave, premium payment information for health insurance while on leave, and other such information.
Designation Notice
The Designation Notice must be provided to the employee within 5 business days of the employer having sufficient information to determine whether the leave will be counted as FMLA leave. The Designation Notice must notify the employee whether the employer will require that paid leave be substituted for the FMLA leave. It must also inform the employee whether the employer will require a fitness-for-duty certification in order to be restored to his or her previous, or equivalent, position (and may have to list the essential functions of the employee’s position).
Finally, the Department of Labor has also issued new medical certification forms that all employers should begin using.
The Department of Labor has prototype forms that can, and should, be used to draft each of the notices mentioned above. Please contact Scott Leah at (412) 594-5551 or sleah@tuckerlaw.com to obtain a copy of the prototype form or to ask any questions that you have regarding the FMLA notice requirements.
