In 2009, the Department of Labor amended its regulations and required employers to provide individual FMLA notices to employees regarding their eligibility and rights under the FMLA (Notice of Eligibility and Rights & Responsibilities) and to what extent and how long each employee is entitled to FMLA (Designation Notice). Therefore, simply putting FMLA rights language in a handbook does not cover an employer’s notice obligations to its employees.
There are 3 documents an employer must give to every employee, when he/she identifies the need for leave that may potentially beFMLA qualifying:
1. The Notice of Eligibility- Once an employee identifies the potential need for FMLA for a serious health condition, including the birth of a child, “the employer must notify the employee of the employee’s eligibility to take FMLA leave within five business days” of ascertaining that her leave may be for an FMLA-qualifying reason, absent extenuating circumstances. 29 C.F.R. 825.300(b)(l). If your employer fails to give you this document at the time you request leave, it has violated the law.
2. Right and Responsibilities Notice- This is a form which should accompany your Notice of Eligibility, and contains general boiler plate language about what you are entitled to expect while on FMLA leave, and what you are required to do while out (submit medical certifications, updates about your condition, and what the consequences are of not meeting these conditions). Specifically, the FMLA states that: “Employers shall provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. . . Employers are also expected to responsively answer questions from employees concerning their rights and responsibilities under the FMLA.” 29 C.F.R. 825.300(c)(1). A copy of this Notice is available at www.dol.gov. But, if your employer fails to give you this document at the time you request leave, it has violated the law.
3. Designation Notice. Within five days of when an employer has enough information to determine whether the employee’s leave is FMLA qualifying, the employer must notify the employee in writing as to whether the leave will be designated and will be counted as FMLA leave. See 29 C.F.R. 825.300(d)(1)(4). This document is often overlooked by employers, and is considered to be the most important document governing FMLA leave. This is the document that defines how long your FMLA is approved for, and when you are expected to return. If an employer fails to give this document to an employee, and the employee does not know the true term of their FMLA leave, this is considered a violation of the law and the employee may be entitled to damages.
The FMLA is a very specific law and there are significant protections built in to protect employees. You may not even know that there are these type of protections available to you. Clearly, some employers don’t know how to comply with the FMLA either. Therefore, if you are having a particular situation at work involving the FMLA, and you want us to take a closer look at no cost, feel free to call us at 866-344-9243 (WAGE), or at [email protected].