While most covered employers recognize and understand their obligation to provide leave under the Family and Medical Leave Act of 1993 (the "FMLA") to eligible employees, employers commonly overlook their obligation to furnish notice to employees regarding their rights and entitlements under the FMLA. According to the regulations prescribed by the Department of Labor, a covered employer is obligated to provide such notice in varying forms, and at varying times.
The "Poster"
Every employer covered by the FMLA is required to post in a conspicuous place (such as the employee breakroom), a poster explaining the FMLA's provisions, and providing information concerning the procedures for filing complaints for alleged violations of the FLSA with the Department of Labor, Wage and Hour Division. Employers may utilize the standard poster prepared by the Department of Labor. Any employer that "willfully" violates this requirement is subject to a monetary penalty not to exceed $100 for each violation.
The Employee Handbook
If a covered employer has any employees eligible for leave under the FMLA, and it utilizes written guidance concerning benefits or leave policies - such as an employee handbook - information concerning FMLA entitlements and employee obligations must be included within the handbook or other document. If the employer does not use a handbook or other written policies, the employer is obligated to provide additional written guidance concerning rights and obligations under the FMLA when an employee first gives notice of the need for FMLA leave.
When a Request For FMLA Leave is Made
When an employee does request leave under the FMLA, the employer must also provide a written notice detailing the specific obligations of the employee, and explaining any consequences of a failure to meet those obligations. In this notice, the employee is advised, among other things, that the leave counts against his FMLA entitlement, that medical certification may be required, and whether paid leave will be substituted for FMLA leave. The Department of Labor has prepared a prototype notice for use in this regard.
When the Employer Suspects FMLA May Be Needed
Generally speaking, it has been recognized that the employee has the obligation to request leave under the FMLA. Nevertheless, the regulations clearly indicate that in the event the employer suspects that an employee's need for leave may be FMLA qualifying, the employer has the obligation to inquire whether FMLA is being sought. For example, if an employee gives notice of impending surgery, but does not request FMLA leave, the FMLA imposes upon the employer the obligation to ask if the employee is seeking or requires FMLA leave.
So What?
The failure to provide the various forms of notice prescribed by the Department of Labor can have significant consequences. According to the regulations, if an employer fails to provide required notice, it may not take adverse action against an employee for failing to comply with any of his or her obligations under the FMLA. Further, an employer's failure to provide the required notice may prevent the employer from designating any period of leave as FMLA leave. In practice, this could mean that an employee who has missed several weeks of work because of an FMLA qualifying event, may be entitled to an additional 12 weeks of leave.