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Jun 28, 2016

The New-ish FMLA Poster and What To Do With It


Category: Employment

First, before we get to that FMLA poster........ still no updated I-9 form. Stick with the version that expired on 03/31/2016 for now. The take away: Department of Homeland Security is not a winner when it comes to updating its forms.

Which governmental agency has gone in the opposite direction and updated when not necessary? That would be the federal Department of Labor (DOL), which recently released a new FMLA poster (that you are not required to post) along with a handy "Employer Guide to The Family Medical Leave Act." The Guide is definitely handy so the DOL gets applause for that. There is also lots of information and guidance on line from them.

In light of the DOL's newly released poster, here are some big questions you should be thinking about:

Q: Is my company covered by the FMLA?
A: If you are a public agency, including a state, local or federal employer, or public school, you are covered by the federal FMLA. (Individual employees may not be covered though if they don't meet certain requirements.) If you are a private sector employer that employs 50 or more employees for at least 20 workweeks in the current or preceding calendar year, you are covered under the FMLA.

Q: What if my company has fewer than 50 employees?
A: If you have fewer than 50 employees, but 15 or more employees, then Maine law requires that you offer 10 weeks of unpaid leave in any two week period.

*If you think you may have less than 15 employees, and therefore would not be covered under the Maine FMLA, ask yourself: Are you sure your company only has fewer than 15 employees? Remember that under federal FMLA and the Maine FMLA, any employee who is on the payroll for the week counts as an employee, even if he or she is suspended or on leave and works no hours that week. Also, part-time employees count as an employee. For example, if you10 employees each working 4 hours per week, they count as 10 employees for FMLA purposes. If you have had 15 workers on the payroll for any 20 weeks this year or last year, you are required to offer 10 weeks of unpaid leave under the Maine FMLA. This is true even if the 20 weeks were not consecutive.

Q: How do I know if my employees are eligible for federal FMLA?
A: To be eligible for federal FMLA leave, an employee must work for a covered employer (see above); and musthave worked for that employer for at least 12 months; and must have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave; and must work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

*To be eligible for Maine FMLA, the employee must work for a private employer with 15 or more workers at one location, any state agency, or any city, town or municipal agency that has 25 or more workers; and must have worked for that employer for at least 12 months in a row.

Q: Back to this new FMLA poster . . . Does my company have to post it?
A: According to the DOL, employers are allowed to post either the current poster or the newer version (i.e., you're not required to switch out your old poster for the newer version). The new version is supposed to be more reader-friendly, but contains the same information as the "older" version. Well, that's not exactly true: the new poster contains highlighted contact information for filing a complaint with the DOL, which you may or may not want to highlight.

Q: What are the posting requirements for the FMLA poster?
A: Let's review those requirements:

  • The poster must be prominently displayed where it can be easily seen by employees and job applicants;
  • The poster must be displayed even if no employees are FMLA eligible (see requirements from above); and
  • The poster must be provided to each employee via an employee handbook distributed to all employees, guidance distributed to employees explaining benefits or leave rights, or a general notice to all new employees upon hire.

A couple of additional reminders:

  • If a significant portion of workers are not English-literate, the employer must provide the notice in a language in which those employees are literate.
  • If you want to "go green," the DOL has said that electronic posting is permitted as long as it meets all the posting requirements above.

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Rebecca Webber and Jordan Payne are employment and litigation attorneys; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone). Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.