(a) General notice. (1) Every employer covered by the FMLA is
required to post and keep posted on its premises, in conspicuous places
where employees are employed, a notice explaining the Act's provisions
and providing information concerning the procedures for filing
complaints of violations of the Act with the Wage and Hour Division.
The notice must be posted prominently where it can be readily seen by
employees and applicants for employment. The poster and the text must
be large enough to be easily read and contain fully legible text.
Electronic posting is sufficient to meet this posting requirement as
long as it otherwise meets the requirements of this section. An
employer that willfully violates the posting requirement may be
assessed a civil money penalty by the Wage and Hour Division not to
exceed $110 for each separate offense.
(2) Covered employers must post this general notice even if no
employees are eligible for FMLA leave.
(3) If an FMLA-covered employer has any eligible employees, it
shall also provide this general notice to each employee by including
the notice in employee handbooks or other written guidance to employees
concerning employee benefits or leave rights, if such written materials
exist, or by distributing a copy of the general notice to each new
employee upon hiring. In either case, distribution may be accomplished
electronically.
(4) To meet the requirements of paragraph (a)(3) of this section,
employers may duplicate the text of the notice contained in Appendix C
of this part or may use another format so long as the information
provided includes, at a minimum, all of the information contained in
that notice. Where an employer's workforce is comprised of a
significant portion of workers who are not literate in English, the
employer shall provide the general notice in a language in which the
employees are literate. Prototypes are available from the nearest
office of the Wage and Hour Division or on the Internet at
http://www.wagehour.dol.gov. Employers furnishing FMLA notices to sensory-
impaired individuals must also comply with all applicable requirements
under Federal or State law.
(b) Eligibility notice. (1) When an employee requests FMLA leave,
or when the employer acquires knowledge that an employee's leave may be
for an FMLA-qualifying reason, the employer must notify the employee of
the employee's eligibility to take FMLA leave within five business
days, absent extenuating circumstances. See Sec. 825.110 for
definition of an eligible employee. Employee eligibility is determined
(and notice must be provided) at the commencement of the first instance
of leave for each FMLA-qualifying reason in the applicable 12-month
period (see Sec. Sec. 825.127(c) and 825.200(b)). All FMLA absences
for the same qualifying reason are considered a single leave and
employee eligibility as to that reason for leave does not change during
the applicable 12-month period.
(2) The eligibility notice must state whether the employee is
eligible for FMLA leave as defined in Sec. 825.110(a). If the employee
is not eligible for FMLA leave, the notice must state at least one
reason why the employee is not eligible, including as applicable the
number of months the employee has been employed by the employer, the
number of hours of service worked for the employer during the 12-month
period, and whether the employee is employed at a worksite where 50 or
more employees are employed by the employer within 75 miles of that
worksite. Notification of eligibility may be oral or in writing;
employers may use Appendix D of this part 825 to provide such
notification to employees. The employer is obligated to translate this
notice in any situation in which it is obligated to do so in Sec.
825.300(a)(4).
(3) If, at the time an employee provides notice of a subsequent
need for FMLA leave during the applicable 12-month period due to a
different FMLA-qualifying reason, and the employee's eligibility status
has not changed, no additional eligibility notice is required. If,
however, the employee's eligibility status has changed (e.g., if the
employee has worked less than 1,250 hours of service for the employer
in the 12 months preceding the commencement of leave for the subsequent
qualifying reason or the size of the workforce at the worksite has
dropped below 50 employees), the employer must notify the employee of
the change in eligibility status within five business days, absent
extenuating circumstances.
(c) Rights and responsibilities notice. (1) Employers shall provide
written notice detailing the specific expectations and obligations of
the employee and explaining any consequences of a failure to meet these
obligations. The employer is obligated to translate this notice in any
situation in which it is obligated to do so in Sec. 825.300(a)(4).
This notice shall be provided to the employee each time the eligibility
notice is provided pursuant to paragraph (b) of this section. If leave
has already begun, the notice should be mailed to the employee's
address of record. Such specific notice must include, as appropriate:
(i) That the leave may be designated and counted against the
employee's annual FMLA leave entitlement if qualifying (see Sec. Sec.
825.300(c) and 825.301) and the applicable 12-month period for FMLA
entitlement (see Sec. Sec. 825.127(c), 825.200(b), (f), and (g));
(ii) Any requirements for the employee to furnish certification of
a serious health condition, serious injury or illness, or qualifying
exigency arising out of active duty or call to active duty status, and
the consequences of failing to do so (see Sec. Sec. 825.305, 825.309,
825.310, 825.313);
(iii) The employee's right to substitute paid leave, whether the
employer will require the substitution of paid leave, the conditions
related to any substitution, and the employee's entitlement to take
unpaid FMLA leave if the employee does not meet the conditions for paid
leave (see Sec. 825.207);
(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) 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);
(vi) The employee's rights to maintenance of benefits during the
FMLA leave and restoration to the same or an equivalent job upon return
from FMLA leave (see Sec. Sec. 825.214 and 825.604); and
(vii) 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 notice of rights and responsibilities 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.
(3) The notice of rights and responsibilities may be accompanied by
any required certification form.
(4) If the specific information provided by the notice of rights
and responsibilities changes, the employer shall, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, provide written notice referencing the prior
notice and setting forth any of the information in the notice of rights
and responsibilities that has changed. For example, if the initial
leave period was 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.
(5) Employers are also expected to responsively answer questions
from employees concerning their rights and responsibilities under the
FMLA.
(6) A prototype notice of rights and responsibilities is contained
in Appendix D of this part; the prototype may be obtained from local
offices of the Wage and Hour Division or from the Internet at
http://www.wagehour.dol.gov. Employers may adapt the prototype notice as
appropriate to meet these notice requirements. The notice of rights and
responsibilities may be distributed electronically so long as it
otherwise meets the requirements of this section.
(d) Designation notice. (1) The employer is responsible in all
circumstances for designating leave as FMLA-qualifying, and for giving
notice of the designation to the employee as provided in this section.
When the employer has enough information to determine whether the leave
is being taken for a FMLA-qualifying reason (e.g., after receiving a
certification), the employer must notify the employee whether the leave
will be designated and will be counted as FMLA leave within five
business days absent extenuating circumstances. Only one notice of
designation is required for each FMLA-qualifying reason per applicable
12-month period, regardless of whether the leave taken due to the
qualifying reason will be a continuous block of leave or intermittent
or reduced schedule leave. If the employer determines that the leave
will not be designated as FMLA-qualifying (e.g., if the leave is not
for a reason covered by FMLA or the FMLA leave entitlement has been
exhausted), the employer must notify the employee of that
determination. If the employer requires paid leave to be substituted
for unpaid FMLA leave, or that paid leave taken under an existing leave
plan be counted as FMLA leave, the employer must inform the employee of
this designation at the time of designating the FMLA leave.
(2) If the employer has sufficient information to designate the
leave as FMLA leave immediately after receiving notice of the
employee's need for leave, the employer may provide the employee with
the designation notice at that time.
(3) If the employer will require the employee to present a fitness-
for-duty certification to be restored to employment, the employer must
provide notice of such requirement with the designation notice. If the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the
employee's position, the employer must so indicate in the designation
notice, and must include a list of the essential functions of the
employee's position. See Sec. 825.312. If the employer handbook or
other written documents (if any) describing the employer's leave
policies clearly provide that a fitness-for-duty certification will be
required in specific circumstances (e.g., by stating that fitness-for-
duty certification will be required in all cases of back injuries for
employees in a certain occupation), the employer is not required to
provide written notice of the requirement with the designation notice,
but must provide oral notice no later than with the designation notice.
(4) The designation notice must be in writing. A prototype
designation notice is contained in Appendix E of this part; the
prototype designation notice may be obtained from local offices of the
Wage and Hour Division or from the Internet at http://www.wagehour.dol.gov.
If the leave is not designated as FMLA leave because it does not meet
the requirements of the Act, the notice to the employee that the leave
is not designated as FMLA leave may be in the form of a simple
written statement.
(5) If the information provided by the employer to the employee in
the designation notice changes (e.g., the employee exhausts the FMLA
leave entitlement), the employer shall provide, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, written notice of the change.
(6) The employer must notify the employee of the amount of leave
counted against the employee's FMLA leave entitlement. If the amount of
leave needed is known at the time the employer designates the leave as
FMLA-qualifying, the employer must notify the employee of the number of
hours, days, or weeks that will be counted against the employee's FMLA
leave entitlement in the designation notice. If it is not possible to
provide the hours, days, or weeks that will be counted against the
employee's FMLA leave entitlement (such as in the case of unforeseeable
intermittent leave), then the employer must provide notice of the
amount of leave counted against the employee's FMLA leave entitlement
upon the request by the employee, but no more often than once in a 30-
day period and only if leave was taken in that period. The notice of
the amount of leave counted against the employee's FMLA entitlement may
be oral or in writing. If such notice is oral, it shall be confirmed in
writing, no later than the following payday (unless the payday is less
than one week after the oral notice, in which case the notice must be
no later than the subsequent payday). Such written notice may be in any
form, including a notation on the employee's pay stub.
(e) Consequences of failing to provide notice. Failure to follow
the notice requirements set forth in this section may constitute an
interference with, restraint, or denial of the exercise of an
employee's FMLA rights. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)).
[73 FR 68096, Nov. 17, 2008]
