What notice is required under FMLA?

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While many employers – and employees – understand that FMLA (the Family and Medical Leave Act) provides up to 12 weeks of job-protected leave to care for yourself or a family member, other parts of the Act aren’t as well understood. The notice provisions are among the most difficult to get right, especially for smaller employers. There is a specific set of communications that companies must use to notify employees of their rights and responsibilities and another set of requirements for employees requesting FMLA leave. Whether you are an employee or an employer, this article will help you better understand what you have to do by telling you:

What is FMLA: A recap

The Family and Medical Leave Act (FMLA) gives eligible employees three basic leave entitlements:

  • The right to take up to 12 workweeks of unpaid leave a year for certain care situations
  • The right to keep their group health care benefits during the leave, as long as the employee covers their customary share of the premium payments
  • The right to return to their same job at the end of their leave, or an equivalent position

Military families receive additional leave entitlements, but the notice requirements for a military leave are generally the same as other situations. Conversely, it's important to note that there are several exclusions – cases in which the Act's protections and requirements don't apply:

  • Smaller employers aren't covered under the Family and Medical Leave Act.

    Generally speaking, only companies that have employed 50 or more people for 20 or more workweeks must comply with the Act.

  • Employees with less than 1,250 hours of work typically aren't eligible.

    An employee needs to have worked about 24 hours per week over the last 12 months to achieve eligibility status.

  • Only certain family and medical care situations are protected under the FMLA.

    Generally speaking, the only covered leave circumstances have to do birth, adoption, or a serious health condition (for the employee or an immediate family member), as well as certain military circumstances.

For more information about the FMLA provisions and which companies, employees, and circumstances are covered, refer to The Employer's Guide to The Family and Medical Leave Act from the U.S. Department of Labor.

Employer notice requirements

Covered employers have four basic kinds of notice (i.e., communication) obligations under the FMLA:

1. General Notice

The purpose of General Notice is to make employees aware of their FMLA rights. Every covered employer must have a notice posted at all times, in a conspicuous place, and at all worksites – specifically, the FMLA poster, which can be downloaded here. The poster explains the FMLA's benefits and eligibility provisions and tells employees how to file complaints of violations. Other things to be aware of:

  • If a significant portion of company employees do not read and write English, the employer must provide the General Notice in a language they can read and write. 
  • When providing FMLA notices to sensory-impaired individuals, employers must also comply with all applicable requirements under federal and state law. 
  • General FMLA notice and eligibility status rules should be in an employee handbook or other written guidance about benefits; otherwise, employers must distribute a copy of the notice to each new hire.

Employers that don't meet the posting requirement may be subject to civil fines. For current penalty amounts, see www.dol.gov/agencies/whd/fmla/applicable_laws.

2. An Eligibility Notice

The purpose of this notice requirement is simply to let an employee know if they are eligible to take FMLA-protected leave. An employer has to provide this notice within five days of an employee's request. If the worker is not eligible for FMLA, the notice must provide at least one reason why (for example, because the employee doesn't meet the Hours of Service requirement.) You can download an Eligibility Notice form WH-381 from the Department of Labor website. 

3. A Rights and Responsibilities Notice

The purpose of this notice is to make sure the employee's FMLA rights and obligations are clearly understood. However, it doesn't state whether or not a request for protected FMLA leave is approved because (for example) the employer might not yet have enough information to do so. Employers have to provide this notice within five days of the employee's request, just like the Eligibility Notice. In fact, the downloadable Rights and Responsibilities Notice, form WH-381, is the same form used for eligibility.

Importantly, this notice also tells the employee if certification of the need for FMLA leave will be required and/or if certification of fitness for duty will be required at the end of leave (see below). It should also explain how to pay healthcare premiums to ensure continued coverage and provide information on how leave is counted, whether paid leave may be substituted for unpaid, and other details.

Certification of the need for leave

An employer can require certification (i.e., a form or document) that supports the employee's need or qualifying reason for FMLA leave, including the likely periods of absences, verification of a serious health condition, or facts supporting a military family leave. The employee is responsible for providing the certification if requested; If the employee does not provide the certification, leave may be denied. The Department of Labor provides downloadable forms for obtaining certification. 

Fitness-for-Duty Certification 

When an employee takes leave for a serious health condition, an employer can require certification from the employee's health care provider stating that the employee can resume work. The requirement cannot be arbitrary; it should be part of a uniformly applied policy to all similarly situated employees.

4. A Designation Notice

Once an employee provides any required certification, employers have five business days to approve or deny FMLA leave. This fourth notice formally designates whether or not the FMLA leave request is approved. It reiterates much of the information provided in the Rights and Responsibilities notice, tells the employee how much leave is designated and counted against the employee's FMLA entitlement, and whether paid leave is substituted for unpaid leave. If the amount of leave needed is unknown (for example, due to a severe injury), the employee can request their remaining leave entitlement information every 30 days. The Department of Labor's downloadable Designation Notice, form WH-382, can also be used to inform the employee that the certification is incomplete and specify what additional information is needed.

For more information about your FMLA obligations as a private employer, refer to The Employer's Guide to The Family and Medical Leave Act from the U.S. Department of Labor.

Employee notice requirements and certification responsibilities

As an employee, you must provide oral notice or a simple written statement to your employer of the need for FMLA leave. In addition, you should comply with standard policies for requesting leave unless unusual circumstances prevent you from doing so, or your employer chooses to waive their rules.

When you seek leave for an FMLA-qualifying reason the first time, you don't need to expressly assert FMLA rights or even mention the FMLA. This is in part because FMLA isn't necessarily top-of-mind, especially in cases where you're responding to a sudden care need (for example, because your spouse just had a heart attack). However, for it to count as an FMLA request, you must provide enough information for your employer to know your situation may be covered by FMLA. (Continuing the previous example, if you just say you're taking a week off without telling your boss that your spouse had a heart attack, then the company has no way of knowing the leave may be protected under FMLA.) Finally, if you seek leave for a reason for which you have previously had FMLA leave (for example, to care for a complication months after your spouse's original heart surgery), then you need to reference that specifically.

If your leave is foreseeable (for example, due to an expected birth or planned medical treatment), then you are required to provide 30 days advance notice. If leave is foreseeable but less than 30 days away, then you must provide notice as soon as possible – generally, either the same or next business day. When there is an emergency and leave is not foreseeable, you must give notice to your employer as soon as practicable, given the circumstances of your particular case. 

You must provide proof of a serious health condition if your employer requests it. Your company has the right to ask for certification from a medical provider showing the need for leave due to your health status or that of an immediate family member. You should be allowed at least 15 calendar days to obtain the certification. If you don't provide appropriately requested medical certification, FMLA leave may be denied.

You do not have to provide your medical records to your employer. They only have a right to request certification containing "complete and sufficient" medical facts to establish that a serious health condition exists. Also, your direct supervisor is never allowed to contact your health care provider. Any contact between your employer and a health care provider must comply with HIPAA privacy regulations. A request for authentication or clarification must be made by a human resource professional, leave administrator, or management official, and you have to give your health care provider a written authorization to disclose any information.

If medical certification is incomplete, your employer must give you a reasonable opportunity to fix the deficiency. Specifically, they must state in writing what additional information is needed and allow at least seven calendar days to cure the defect. Also, your employer may require a second or third medical opinion – but the company will have to pay for all the associated costs.

You may have to provide fitness-for-duty certification in certain situations. For example, if you are on FMLA leave due to your own serious health condition, your employer may require proof that you are fit to resume your duties. To do so, your organization must have a uniformly applied policy that requires all employees in similar circumstances to submit certification from a health care provider of fitness to resume work. If you don't submit a properly requested certification of fitness for duty, then your job restoration may be delayed. If certification is never provided, reinstatement may be denied.

Resources to help companies better manage FMLA leave and other types of absence

Workforce management software and platforms

Several leave management software platforms are available to help facilitate leave requests without paper forms and allow HR to track leave balances and approve requests. Such platforms can also help track employee availability, compliance, and other tasks relating to the leave management process.

Third-party administration

Using third parties to oversee absence management can help alleviate the administrative burden on your HR team, reduce paperwork, and help ensure consistency and objectivity in employee treatment, which is key to FMLA compliance. And since most FMLA absences are related to an employee's health issues, outsourcing these leaves, Short Term Disability (STD), and other items to the same external resource can help maximize the success of your leave management system. If your company needs help with the demands of FMLA and other employee leave management issues, consider learning more about Guardian AbsenceWorks. It's a resource that can help simplify administration and give employers more time to focus on core business needs.

Take the first step by assessing your company's current efforts

The Guardian Absence Management ScorecardSM can help you see how effective your leave management system measures up to other companies. It will also provide customized policy and process suggestions that can help your organization drive better results. 

Frequently asked questions about FMLA notice

How much notice do I need to give my employer for FMLA?

If your leave is foreseeable (for example, due to planned surgery), you must provide 30 days advance notice. If leave is foreseeable but less than 30 days away, then you must provide notice as soon as possible – generally, either the same or next business day. When leave is not foreseeable, then you must give notice to your employer as soon as practicable.

Can you give a 2-week notice while on FMLA?

If you are on FMLA leave, you may notify your employer that you are leaving the company in 2 weeks. Your FMLA protections, including continuing health care coverage, will end when you separate from your employer. However, if you would have otherwise been eligible for health care coverage under COBRA, that eligibility should continue.

Are employers required to inform employees of FMLA?

Yes, covered employers have very detailed FMLA notice requirements, including:

  • A General Notice FMLA poster, prominently placed in each work location, that explains the employee's rights, FMLA qualifying, and eligibility provisions, and describes how to file complaints of violations.
  • An Eligibility Notice to let an employee know if they are eligible to take FMLA-protected leave, which must be provided within five days of an employee request.
  • A Rights and Responsibilities Notice to make sure the employee understands which rights they are entitled to and what obligations they have under the Act, which also must be provided within five days of an employee request.
  • A Designation Notice, provided within five days of any required certification, stating whether FMLA leave is approved and denied, along with other information about how their leave will be handled.

What are the requirements that the employer must provide for the FMLA?

The Act requires covered employers to give eligible employees three basic leave entitlements (rights):

  • The right to take up to 12 workweeks of unpaid FMLA leave per year for family and medical care
  • The right to keep their group health benefits during the leave, as long as the employee pays their customary share of the cost
  • The right to return to their same job at the end of their FMLA leave, or an equivalent position
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Disclaimer

References:

Unless otherwise noted, all information is  The Employer's Guide to The Family and Medical Leave Act from the U.S. Department of Labor, and/or the DOL's FMLA Frequently Asked Questions https://www.dol.gov/agencies/whd/fmla/faq

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2021-128265  20231031