Guide to Employer FMLA Notices with DOL Approved FMLA Forms

posted by Neil Klingshirn  |  Jul 23, 2009 07:53 AM [EST]  |  applies to Ohio

A.    Employer Notices

The 2008 FMLA regulations require four separate types of Employer notices:
  1. “General notice,” which means the poster listing employees’ FMLA rights, plus a new a requirement to notify employees separately of their FMLA rights in writing in an employee handbook or otherwise “upon hiring.” 29 CFR § 825.300(a).
  2. “Eligibility notice” when an employee requests leave, or when the employer identifies a potential FMLA-qualifying leave.  The employer must notify the employee of his or her FMLA eligibility status within 5 business days. If the employee is not eligible for FMLA leave, the notice must state at least one reason why the employee is not eligible. 29 CFR § 825.300(b). Eligibility notice may be provided orally or in writing.
  3. “Designation notice” in writing within five days after obtaining sufficient information to know whether a given absence is FMLA-qualifying or not. If leave is granted, the designation notice must:
    1.  include any “fitness-for-duty” certification required by the employer and
    2. specifically inform the employee of the amount of leave – “hours, days or weeks” – that will be deducted as a result of the leave
  4. “Rights and responsibilities notice” to employees who take leave, in writing, detailing the employer’s expectations and any consequences of the employee’s failure to meet these expectations under the FMLA. This notice must be provided with the eligibility notice and must include:
    1. an explanation that if FMLA leave is granted it will be deducted from the employee’s 12-week allowance,
    2. requirements for employees to submit medical certifications and the consequences for failing to do so,
    3. employer requirements for using or substituting other paid leave for FLMA leave
    4. employee obligations for maintaining health benefits during FMLA leave, such as paying premiums,
    5. key employee status, if applicable,
    6. employee rights, including health insurance benefits and job restoration and
    7. the employee’s potential liability for unpaid health insurance premiums if the employee fails to return to work following leave. 29 CFR § 825.300(c).

B.  Employee Notice

The 2008 regulations state that, in cases of unforeseeable leaves, the time “practicable” for an employee to notify the employer of the need for leave is “either the same day or the next business day.” An employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Employers may require employees seeking FMLA leave to call a “designated number or a specific individual to request leave,” which changes the old rule that prohibited an employer from delaying or denying FMLA leave if an employee failed to follow the employer's procedures.29 CFR § 825.302 and .303.

The 2008 regulations limit the rule that an employee need not mention the FMLA by name to circumstances “[w]hen an employee seeks leave for the first time for an FMLA qualifying reason.” Once the employer grants FMLA leave for an employee’s health condition, however, the employee must “specifically reference either the qualifying reason or the need for FMLA leave” in order to preserve his or her rights under the Act. Simply calling in “sick” may not be enough to trigger the affirmative duty for the employer to inquire further about whether the absence might be FMLA-qualifying. 29 CFR § 825.303.

Medical Certification
The final regulations include new, Department of Labor approved medical certification forms, including separate forms for the serious health conditions of employees and those of family members. The final regulations allow health care providers to include medical facts about diagnoses, symptoms, hospitalization, doctors’ visits, prescription medication, referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment.

External Links

Department of Labor FMLA Notices, Forms and Instructions:

posted by Neil Klingshirn  |  Jul 23, 2009 07:53 AM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
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Independence, OH
Phone: 216-382-2500