(a)(1) If an FMLA-covered employer has any eligible employees and
has any 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.
Informational publications describing the Act's provisions are available
from local offices of the Wage and Hour Division and may be incorporated
in such employer handbooks or written policies.
(2) If such an employer does not have written policies, manuals, or
handbooks describing employee benefits and leave provisions, the
employer shall provide written guidance to an employee concerning all
the employee's rights and obligations under the FMLA. This notice shall
be provided to employees each time notice is given pursuant to paragraph
(b), and in accordance with the provisions of that paragraph. Employers
may duplicate and provide the employee a copy of the FMLA Fact Sheet
available from the nearest office of the Wage and Hour Division to
provide such guidance.
(b)(1) The employer shall also 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)). Such
specific notice must include, as appropriate:
(i) that the leave will be counted against the employee's annual
FMLA leave entitlement (see Sec. 825.208);
(ii) 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);
(iii) 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;
(iv) 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);
(v) any requirement for the employee to present a fitness-for-duty
certificate to be restored to employment (see Sec. 825.310);
(vi) 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);
(vii) 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,
(viii) 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).
(2) The specific 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 contained in Appendix D of this part, or may be obtained from
local offices of the Department of Labor's Wage and Hour Division, which
employers may adapt for their use to meet these specific notice
requirements.
(c) Except as provided in this subparagraph, the written notice
required by paragraph (b) (and by subparagraph (a)(2) where applicable)
must be provided to the employee no less often than the first time in
each six-month period that an employee gives notice of the need for FMLA
leave (if FMLA leave is taken during the six-month period). The notice
shall be given within a reasonable time after notice of the need for
leave is given by the employee--within one or two business days if
feasible. If leave has already begun, the notice should be mailed to the
employee's address of record.
(1) If the specific information provided by the notice changes with
respect to a subsequent period of FMLA leave during the six-month
period, the employer shall, within one or two business days of receipt
of the employee's notice of need for leave, provide written notice
referencing the prior notice and setting forth any of the information in
subparagraph (b) which has changed. For example, if the initial leave
period were paid leave and the subsequent leave period would be unpaid
leave, the employer may need to give notice of the arrangements for
making premium payments.
(2)(i) Except as provided in subparagraph (ii), if the employer is
requiring medical certification or a ``fitness-for-duty'' report,
written notice of the requirement shall be given with respect to each
employee notice of a need for leave.
(ii) Subsequent written notification shall not be required if the
initial notice in the six-months period and the employer handbook or
other written documents (if any) describing the employer's leave
policies, clearly provided that certification or a ``fitness-for-duty''
report would be required (e.g., by stating that certification would be
required in all cases, by stating that certification would be required
in all cases in which leave of more than a specified number of days is
taken, or by stating that a ``fitness-for-duty'' report would be
required in all cases for back injuries for employees in a certain
occupation). Where subsequent written notice is not required, at least
oral notice shall be provided. (See Sec. 825.305(a).)
(d) Employers are also expected to responsively answer questions
from employees concerning their rights and responsibilities under the
FMLA.
(e) Employers furnishing FMLA-required notices to sensory impaired
individuals must also comply with all applicable requirements under
Federal or State law.
(f) If an employer fails to provide notice in accordance with the
provisions of this section, the employer may not take action against an
employee for failure to comply with any provision required to be set
forth in the notice.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
