Home » Publications » Alerts » Final FMLA Regulations Effective 1/16/09 Require Employer Action » Employer Notice Requirements

Employer Notice Requirements

Release Date: January 22, 2009

Under the new regulations, there are now five basic employer FMLA notices:

• The employer must post the new FMLA notice that takes effect on January 16, 2009.  A general notice such as an FMLA poster or revised handbook provisions are sufficient to satisfy the new notice requirements.  The new regulations also clarify that if the employer has an employee handbook, that the handbook must contain the general notice and a notice of the employee’s right to file a claim against the employer.  The general notice of FMLA rights may be given to employees electronically, but it must be available to applicants as well as current employees. This is a clarification of the prior regulations. A new requirement of the regulations is also that the employer is required to post the general notice in a language in which a  majority of the employees are fluent.
  
  
•  The notice of eligibility must now be provided within 5 days of an employee’s request for leave or the employer’s acquisition of knowledge that the employee needs leave which may qualify under the FMLA and an employer must now tell an employee if the employee is not eligible for leave and state at least one reason why the employee is not eligible for leave.  Both the employee’s request for leave and the employer’s response regarding whether the employee is eligible for leave may be made orally.
  
  
• The employer must provide the employee with written notice of rights and responsibilities.  This notice must provide information regarding leave requirements such as:  the employer’s rules regarding medical certifications; rules for payment of health insurance premiums including the right to restoration of health benefits upon return to work if the employee does not pay the premiums; job restoration rights; right to substitution of paid leave where applicable; and the right to take unpaid leave if employee fails to comply with paid leave policies.  The employer must now provide an amended notice of rights and responsibilities within 5 business days of any changes in the employer’s rules or the employee’s rights. 
  
• The time for providing an employee with a designation notice stating whether the leave being taken will count toward FMLA leave has also changed.  When employees request FMLA leave, or when employers acquire knowledge that an employee’s leave may be for an FMLA-qualifying reason, employers must notify employees whether the leave is being designated as FMLA leave within 5 business days, (formerly 2 days).  The time periods that apply to employee notice requirements may be extended if exigent circumstances exist.
  

Related Links:
Revised FMLA Poster