On April 18, the federal DOL is coming to town to talk about the Family Medical Leave Act. The program is sponsored by Central Maine Human Resources Association. Non-members can sign up here. So, while we’re on that topic, let’s say that your employee has told you that they need to be out of work for a medical condition (or to take care of a close family member with a medical condition). Now what? As you may already know, the “now what?” can become something of a landmine for employers. This is because failure to adhere to the law’s notice requirements can land you in hot water, legally speaking. So, here’s “what:”
Once an employee notifies an employer that they need to take leave for an FMLA qualifying reason, employers have the responsibility to provide the following notices:
(1) THE GENERAL NOTICE
Every employer covered by the FMLA is required to post and keep posted on its premises a notice explaining the FMLA’s requirements and how to file complaints of violations of the FMLA with the Wage and Hour Division. Luckily, we’ve already written about this requirement! Check it out.(2) The ELIGIBILITY NOTICE
When an employee requests FMLA leave, or when the employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days. This eligibility notice must state:
- Whether the employee is eligible for FMLA leave; or
- If the employee is not eligible, at least one reason why the employee is not eligible.
The eligibility notice may be oral or in writing. It must be provided at the first request for or instance of leave for each FMLA-qualifying reason in the applicable 12-month period. Here’s an optional form that the DOL puts out: WH-381. Our recommendation? Put it in writing!
(3) THE RIGHTS AND RESPONSIBILITIES NOTICE
Each time an eligibility notice (see above) is required, the employer must also provide written notice to the employee detailing the specific expectations and obligations of the employee and the consequences of failing to meet them. The rights and responsibilities notice must include, as appropriate:
- Telling the employee that the leave may be designated and counted against the employee’s annual FMLA leave entitlement, if qualifying, and the applicable 12-month FMLA leave period;
- Telling the employee about any requirements (if you require this) for the employee to furnish certification of the need for leave and the consequences of failing to do so;
- Telling the employee about their right to substitute paid leave (or whether the employer will require that), the conditions related to any substitution, and the employee’s entitlement to take unpaid FMLA leave if he or she does not meet the conditions for paid leave;
- Telling the employee about any requirement you have for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failing to make such payments on a timely basis;
- Letting the employee know whether or not they are what’s called a “key employee” (click here for more info on that)and the possibility that restoration may be denied following FMLA leave, explaining the conditions required for such denial;
- The employee’s rights to maintenance of benefits during FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave; and
- The employee’s potential liability for payment of health insurance premiums paid by the employer during the employee’s unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.
(4) THE DESIGNATION NOTICE
This is similar to the “general notice,” but is more tailored to the employee. It is the employer’s responsibility to designate leave as FMLA-qualifying (whether unpaid or paid through substitution of paid leave), and to give notice of this designation to the employee. If the employer does not have sufficient information about the reason for an employee’s use of leave, the employer should inquire further of the employee or his or her spouse, adult family member or other responsible party to determine whether leave is potentially FMLA-qualifying.
When the employer has enough information to determine whether the leave is being taken for an FMLA-qualifying reason, the employer must notify the employee whether the leave has or has not been designated as FMLA leave within five business days absent extenuating circumstances.
- The notice should also include the number of hours, days or weeks that will be counted against the employee’s FMLA leave entitlement.
- If the employer will require the employee to present a fitness-for-duty certification to return to work, the employer must provide notice of such requirement with the designation notice. (Click here: Fitness-for-Duty Certification for more information about fitness-for-duty certification requirements).
- The designation notice must be in writing. Employers may use the optional form WH-382.
Don’t zone out yet!
- Failure to follow the designation notice requirements may constitute an interference with, restraint, or denial of the exercise of an employee’s FMLA rights.
- An employer may be liable for:
- Compensation and benefits lost by reason of the violation;
- Other actual monetary losses sustained as a direct result of the violation;
- Other relief, including employment, reinstatement, promotion or any other relief tailored to the harm suffered.
- An employer may be liable for:
We will follow up with more in a companion article on FMLA, so feel free to e-mail us in the meantime about any particular FMLA questions. We hope to see you on April 18!
This article is not legal advice but should be considered as general guidance in the area of employment and corporate law. Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters. You can contact us at 207.784.3200. 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.