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FMLA Notice Requirements - Employer

The Family and Medical Leave Act (FMLA) entitles eligible employees at those companies covered by the law to take up to 12 weeks of unpaid vacation every 12 months to care for an immediate family member or to recover from their own serious health condition.  Once the leave has ended, the law requires companies to reinstate workers at their same job, or its equivalent, with the same level of pay and benefits.

In addition, the FMLA also directs employers to provide several kinds of notice to employees concerning their rights and obligations under the FMLA.  The FMLA also contains rules that govern the time periods that employers have to inform employees about their eligibility for FMLA leave and the employer's decision whether or not to apply the time off towards the 12 weeks provided by the FMLA.

General Notice

Like many other federal labor laws, the FMLA requires covered employers to post a general notice explaining the FMLA and outlining the procedures for filing a claim if an employee feels their rights under the FMLA have been violated.  The notice must also contain the definition for a serious health condition, details on military leave entitlements, and the basic employer and employee responsibilities under the FMLA.  This notice must appear in a location that is clearly visible to employees and applicants. 

In addition, this notice must also appear in any written guide or manual that explains employee benefits and leave, such as an employee handbook.  If the employer does not distribute such a document, then the employer has to at least provide the general notice concerning the FMLA upon hiring a new employee.

Employers who fail to provide the required FMLA notice are subject to a civil penalty.

FMLA Eligibility Notice

After an employee gives the employer notice of their intent to take leave or the employer discovers that an employee's leave is potentially for an FMLA-qualifying reason, the employer has five business days to inform the employee whether they are eligible for FMLA leave.  If the employer has determined that the employee is not eligible for FMLA leave, the employer must also provide at least one reason for this determination.

Upon notifying an employee of their eligibility for FMLA leave, employers must also notify the employee of the expectations and duties associated with the leave.  This notification can include, among other things, whether or not the employee must provide medical certification for the FMLA-qualifying reason for the leave and the employee's right to use paid leave time for the FMLA leave.

FMLA Designation Notice

Once an employer learns that an employee's leave is for an FMLA-qualifying reason, they must notify the employee of the decision to designate the leave as FMLA leave within five business days (absent extenuating circumstances).  In addition, this notification should also list:

  • Whether the employer will elect to substitute paid leave for unpaid FMLA leave;
  • Whether the employee must provide certification that they are fit to return to work; and
  • The amount of time that will be counted against the employee's FMLA leave allowance, if known.

If an employer fails to provide this notice, the employee cannot receive more that the 12 weeks of statutorily-provided leave.  Employers can retroactively designate leave as FMLA leave, but employees may be able to recover for any damages they may have suffered or expenses they incurred as a result of the employer's failure to provide the notification.

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