This is Utah SHRM Legal-mail no. 2013-20 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).
CONTENTS: FMLA NOTICE REQUIREMENTS
- INTRODUCTION TO FMLA NOTICE REQUIREMENTS
- INITIAL NOTICES
- ELIGIBILITY AND RIGHTS/RESPONSIBILITIES NOTICES
- DESIGNATION NOTICE
- FMLA MODEL FORMS AVAILABLE
INTRODUCTION TO FMLA NOTICE REQUIREMENTS: The federal Family and Medical Leave Act (FMLA) imposes a number of written notice requirements upon an employer. Failure to comply with them could expose an employer to claims that the employer violated the FMLA, interfered with an employee’s FMLA rights or retaliated against an employee. Thus, it is good for HR professionals to review their company’s FMLA practices from time-to-time to ensure they are complying fully with the FMLA notice mandates. Here (below) is a summary of the mandates. They are explained in more detail in the United States Department of Labor (DOL) regulations, found here: http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=d178a2522c85f1f401ed3f3740984fed&rgn=div5&view=text&node=29:18.104.22.168.54&idno=29#29:22.214.171.124.54.3.489.1
INITIAL NOTICES: The FMLA requires employers to post a notice (a poster) explaining an employee’s FMLA rights. A copy of the DOL required notice can be found here: http://www.dol.gov/whd/regs/compliance/posters/fmlaen.pdf. An employer that has a written handbook or leave policy must include the general FMLA notice information in the same. Such notices must be given to all employees at least once during employment, typically at the time of hiring. It is probably not a bad idea to give them to an employee again when a leave issue arises. This information can be posted electronically if it is made accessible to all employees and applicants. The paper poster must be posted in a central place, however, if not all employees have access to the electronic notices.
ELIGIBILITY AND RIGHTS/RESPONSIBILITIES NOTICES: Once an employee requests FMLA leave, or an employer becomes aware that an employee’s leave may be covered by the FMLA, the employee must first be told whether or not he/she is eligible for FMLA leave. Absent extenuating circumstances, this must be done within five days. The DOL has provided a form (see below) for employers to use. Giving written eligibility notice is best because it documents the employer’s compliance with the law. An employer must notify the employee of any changes in eligibility status within five days of the change. At the same time the eligibility notice is given, the employer also must notify the employee in writing of his/her rights and responsibilities under the FMLA. DOL’s model eligibility form (see below) includes these requirements. This rights and responsibilities notice must state that the leave may be designated and counted against FMLA entitlement and must identify the 12 month period (e.g. rolling, fixed calendar, etc.) the employer uses for determining the amount of leave available. The employee must also be told at this time what it must pay in premiums to pay for insurance and whether health care provider certification is required to justify the leave (DOL also provides model health care provider certification forms...see below).
DESIGNATION NOTICE: Within five days of when it receives sufficient information to determine if a leave is FMLA-qualifying (which is typically--but not always--after receiving back the employee’s health care provider certification form), the employer must give written notice designating the leave as FMLA leave or denying designation. The designation notice must specifically state the amount of leave time that will be designated as FMLA leave and whether the employee will be required to use accrued paid leave at the same time. If leave duration is unknown (or intermittent), this designation should be given every thirty days. The designation notice also must tell the employee if a return to work (RTW) certification is required and if so, must provide a list of essential job duties if the employer requires the RTW note to address the employee’s ability to perform essential job functions. If the leave is not deemed as FMLA-qualifying, the employee must still be given a designation notice and told why. The employer must tell the employee of any changes in the designation within five days. Again, DOL has provided a helpful model designation form (see below).
FMLA MODEL FORMS AVAILABLE: The United States Department of Labor (DOL) has issued FMLA forms said to be good for use through February of 2015. The forms prompt you to provide all the required information explained above. Here are the forms and where you can find them online:
WH-380-E Certification of Health Care Provider for Employee’s Serious Health Condition- found at: http://www.dol.gov/whd/forms/WH-380-E.pdf
WH-380-F Certification of Health Care Provider for Family Member’s Serious Health Condition- found at: http://www.dol.gov/whd/forms/WH-380-F.pdf
WH-381 Notice of Eligibility and Rights & Responsibilities- found at: http://www.dol.gov/whd/forms/WH-381.pdf
WH-382 Designation Notice- found at: http://www.dol.gov/whd/forms/WH-382.pdf
WH-384 Certification of Qualifying Exigency For Military Family Leave- found at: http://www.dol.gov/whd/forms/WH-384.pdf
WH-385 Certification for Serious Injury or Illness of Covered Servicemember -- for Military Family Leave- found at: http://www.dol.gov/whd/forms/WH-385.pdf