One of the major changes under the new FMLA Regulations is the “notice requirements” an employer owes to its employees. In an attempt to consolidate and clarify the employer’s obligations, the Department of Labor (“DOL”) has split the notice requirements into four main categories, and placed them all in 29 C.F.R. 825.300. The main changes are explained below.
1. General Notice Requirement. What changes for 2009 and beyond is that the Regulations now permits employers to post the notice electronically (only if all employees and applicants can access to the information – i.e., a personal work email account). Additionally, employers now must also distribute the policy (moving a “best practice” into a legal requirement). A prototype general notice is provided in Appendix C; the prototype has been modified to include additional information to employees about what the employee needs to say for the information to be considered “sufficient” to alert the employer that the request may be for an FMLA-qualifying reason.
2. Eligibility Notice Obligations. The DOL has modified these regulations to consolidate, strengthen and clarify the requirements. Under the old regulations, employers were required to notify employees of their eligibility to take leave within two business days after receiving sufficient information that the employee may be on leave for an FMLA-qualifying reason. The DOL has expanded this time period to five days to provide employers additional time to more accurately calculate whether the employee is eligible to take FMLA leave. This notice should address only the statutory eligibility criteria, and is separate from whether the employees have leave, and separate from whether the reason for the absence is covered. If an employee is ineligible, the notice need only state one reason for such ineligibility. The new regulations also clarify the frequency with which such notices may be given. Once eligibility is satisfied for a particular condition, the employee remains eligible for the entire 12-month period. If the employee requests leave for a different reason and the employee’s eligibility status has changed, the employer is required to notify the employee of such determination within five days.
3. The rights and responsibilities notice requirements. The employer must provide this notice at the same time as the eligibility notice, and must notify the employee of any changes within five days. Additionally, this notice must tell the employee the method that will be used for establishing the 12-month period of entitlement, and the start date of the “single 12-month period” for Military Caregiver Leave. The employer must also explain the conditions that will apply to the use of paid leave that runs concurrently with FMLA leave. The medical certification may be included, but is not required to be provided at this point. This notice may be distributed electronically provided that the employee has access to the information.
4. Notice obligations to Employee. Once an employer has received enough information to determine whether the leave qualifies as FMLA leave, the employer must notify the employee whether the leave will be designated as FMLA-leave within five days. Where an employer wishes to request that a fitness-for-duty certification address whether the employee is able to perform the essential functions of his/her job, the designation notice must state this. Additionally, the employer must provide a list of the essential functions. In order to encourage employers to communicate with employees early on, the regulations clarify that this notice may be provided at the same time as the eligibility notice where the employer has enough information to determine whether the leave will be designated as FMLA leave. As with the rights and responsibilities notice, if any information changes, the employee must notify the employee of the changes. This notice should inform the employee of the number of hours that will be counted against the total FMLA entitlement. However, in the case of intermittent leave where this information may be unknown, the employer only needs to provide the information upon request, and no more often than every 30 days if leave is taken during that period. The regulations permit an employer to notify the employee of the number of hours counted orally, and then follow up with a notification on the employee’s pay stub.
Finally, it is of note that the new Regulations also codify the Supreme Court’s decision in Ragsdale, eliminating categorical penalty provisions. Failure to comply with the employer notice obligations may still constitute interference with FMLA rights, and if the employee shows harm, the employer may be liable for lost compensation and benefits, other monetary losses, or any other appropriate relief.
[Special Thanks to Briton Nelson, an associate in our Richmond Office, for preparing this material]