Year: 2009

An employer must provide written notice to an employee each that an employee gives notice of the need for FMLA leave. The employer has to give the notice within a reasonable time after notice of the need for
leave is given by the employee (within one or two business days if feasible.) [See 29 CFR 825.301 (c)]

The employer has to provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. The written notice must be provided to the employee in a language in which the employee is literate (see Sec. 825.300(c)).

Section 29 CFR.301(b) provides that the written notice must include, as appropriate:

1. that the leave will be counted against the employee’s annual FMLA leave entitlement (see Sec. 825.208);
2. any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so (see Sec. 825.305);
3. the employee’s right to substitute paid leave and whether the employer will require the substitution of paid leave, and the conditions related to any substitution;
4. any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (see Sec. 825.210), and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse);
5. any requirement for the employee to present a fitness-for-duty certificate to be restored to employment (see Sec. 825.310);
6. the employee’s status as a “key employee” and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial (see Sec. 825.218);
7. the employee’s right to restoration to the same or an equivalent job upon return from leave (see Secs. 825.214 and 825.604); and,
8. 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 (see Sec. 825.213).

The notice may include other information–e.g., whether the employer will require periodic reports of the employee’s status and intent to return to work, but is not required to do so. A prototype notice is DOL Form WH-381 (.pdf).

In addition to putting up the new FMLA poster, covered employers must  give notices to employees about their rights under the Family and Medical Leave Act. Section 29 CFR 825.301 describes the required notices.

If you have written guidance to employees concerning employee benefits or leave rights, such as in an employee handbook, information concerning FMLA entitlements and employee obligations under the FMLA must be included in the handbook or other document. For example, if an employer provides an employee handbook to all employees that describes the employer’s policies regarding leave, wages, attendance, and similar matters, the handbook must incorporate information on FMLA rights and responsibilities and the employer’s policies regarding the FMLA.

If you company does not have handbooks or other written material, then you need to provide general written guidance about employee rights and obligations under FMLA whenever an employee requests leave. According to the Department of Labor FMLA website, delivering a copy of Fact Sheet No. 28 will fulfill this requirement.

The Family and Medical Leave Act does impose some record-keeping requirements on employers. [See 29 CFR 825.500].

The law does not impose any particular form or order of the records. Employers umst keep the records for at least three years.

Covered employers who have eligible employees must maintain records that must disclose the following:

1. Basic payroll and identifying employee data, including name, address, and occupation; rate or basis of pay and terms of compensation; daily and weekly hours worked per pay period; additions to or deductions from wages; and total compensation paid.
2. Dates FMLA leave is taken by FMLA eligible employees (e.g., available from time records, requests for leave, etc., if so designated). Leave must be designated in records as FMLA leave; leave so designated may not include leave required under State law or an employer plan which is not also covered by FMLA.
3. If FMLA leave is taken by eligible employees in increments of less than one full day, the hours of the leave.
4. Copies of employee notices of leave furnished to the employer under FMLA, if in writing, and copies of all general and specific written notices given to employees as required under FMLA and these regulations (see Sec. 825.301(b)). Copies may be maintained in employee personnel files.
5. Any documents (including written and electronic records) describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves.
6. Premium payments of employee benefits.
7. Records of any dispute between the employer and an eligible employee regarding designation of leave as FMLA leave, including any written statement from the employer or employee of the reasons for the designation and for the disagreement.