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Remember Your Notice Obligations Under FMLA

August 19, 1999
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Related Topics: Employee Leave, Featured Article
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Beyond maintaining health benefits while employees are on FMLA leave and restoring returning employees to the same or equivalent positions upon their return, employers also face a number of notice obligations under FMLA.

Public posting.
Employers must keep posted, in conspicuous places, a notice setting forth excerpts from or summaries of the pertinent provisions of the law and information regarding filing a charge. If a significant portion of workers is not literate in English, the employer must provide the notice in a language in which the employees are literate. Employers face a civil penalty of $100 per separate offense for willfully violating this public posting requirement.

Notice of employee's rights.
Employers must furnish information to employees on their rights and obligations under the FMLA. This must be done through employee handbooks if the employer ordinarily distributes these handbooks to employees, or else by furnishing written guidance when employees request FMLA leave. An FMLA Fact Sheet from the Labor Department's Wage and Hour Division may be used for this purpose.

When employee gives notice of leave.
When an employee gives notice of the need for FMLA leave, the employer must provide the employee with a notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. This notice should include the following information, as applicable:

  • that the leave will be counted against the employee's annual FMLA leave entitlement;
  • any requirements for the employee to furnish medical certification of a serious health condition and the consequences of failing to do so;
  • 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;
  • any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (and the circumstances under which coverage may lapse);
  • any requirement for the employee to present a fitness-for-duty certificate to be restored to employment;
  • the employee's status as a "key employee" and the potential consequence that job restoration may be denied following FMLA leave, explaining the conditions required for such denial;
  • the employee's right to restoration to the same or an equivalent job upon return from leave; and
  • 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.

The notice may include other information, such as whether the employer will require periodic reports on the employee's status and intent to return to work, but this is not required.

Cite: 29 CFR Sec. 825.301.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at http://hr.cch.com.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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