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Employers, Don't Forget Your Notice Obligations Under The FMLA

In recent years, a growing number of states have enacted comprehensive medical and family leave laws, many of them giving employees a right to paid leave. Amidst the rush of complying with these new state laws, employers need to be sure that they do not overlook their notice obligations under the federal Family and Medical Leave Act (“FMLA”).

FMLA Overview

The FMLA, enacted in 1993, provides eligible employees of covered employers up to 12 weeks of unpaid, job-protected leave within a 12-month period for qualifying medical and family reasons. Covered employers include private employers that employ 50 or more employees, public agencies, and local educational agencies.

To be eligible for FMLA leave, an employee must (i) have worked for a covered employer for at least 12 months, (ii) have worked at least 1,250 hours during the 12 months before the start of the employee’s intended FMLA leave, and (iii) work at a location where the employer has at least 50 employees within a 75-mile radius.

Qualifying reasons for FMLA leave include caring for the employee’s own or an employee’s family member’s serious health condition, caring for the employee’s child after birth or placement for adoption or foster care, and various reasons related to a family member’s service in the military.

The FMLA requires employers to continue an employee’s group health benefits during leave and restore an employee to the same or an equivalent position upon return from leave. The statute also prohibits retaliation against employees for taking leave or otherwise exercising their rights under the FMLA.

Notice Obligations

All covered employers must display an FMLA poster in the workplace. Additionally, a covered employer that has eligible employees is required to include a policy informing employees of their rights and obligations under the FMLA in the employer’s employee handbook or other written leave materials.

Within five business days after receiving notice of an employee’s need for FMLA leave, an employer must provide the employee with information regarding the employee’s eligibility, rights, and responsibilities under the FMLA. This is one of the most overlooked requirements under the FMLA and can cause a slew of problems for employers if disregarded, including claims of FMLA interference.

It is critical to remember that an employee need not specifically ask for FMLA leave or mention the statute when requesting leave for a medical or family reason. For instance, if an employee simply asks to take time off for surgery or to care for a sick family member, without mentioning the FMLA, that is likely sufficient to put the employer on notice as to the employee’s potential need for FMLA leave. Likewise, if an employee requests or mentions a different type of leave, the employer is nonetheless required to provide notice under the FMLA if it is apparent that the requested leave may be for an FMLA-qualifying reason.

For these reasons, any time an employee gives notice of a need for leave, the employer should immediately consider whether the requested leave is for an FMLA-qualifying reason, thereby triggering the FMLA notice process.

As soon as an employer has information indicating that an employee’s intended leave may be for an FMLA-qualifying reason, the employer must provide the employee with oral or written notice of their potential eligibility and written notice of their rights and responsibilities under the FMLA within five business days. These notice requirements apply even if the employer is aware that the employee is not actually eligible to take FMLA leave (for instance, because the employee has been employed for fewer than 12 months).

The U.S. Department of Labor has created a formal “Notice of Eligibility & Rights and Responsibilities” to enable employers to comply with these notice requirements.

An employer’s human resources personnel and managers play a critical role in ensuring compliance with the FMLA’s notice requirements. Failure to comply with an employer’s obligations under the FMLA may result in significant penalties. It is, therefore, essential that human resources, employees and managers be properly trained on the qualifying reasons for leave under the FMLA, the requirements of the law, and the employer’s policies and processes for handling such requests.

Interaction With State-Provided Leave

Since FMLA leave is unpaid, many states have enacted and begun implementing their own paid family and medical leave laws. For instance, California, Connecticut, Massachusetts, and New Jersey have all implemented paid family and medical leave laws or programs.

When the qualifying reasons for leave under the FMLA align with the reasons for leave under a state leave law or the employer’s leave policies, such leaves will generally run concurrently. This is the case more often than not, as qualifying reasons for family or medical leave under such state laws are generally similar to those that apply under the FMLA.

Recommendations For Employers

With these points in mind, we suggest that employers take the following steps:

• Carefully review and update employee leave policies, in conjunction with experienced employment counsel, to ensure that leave policies and procedures comply with applicable state and federal laws and specify how various types of leaves interact (e.g., when they run concurrently).

• Conduct regular trainings to ensure that all human resources personnel and managers are aware of their responsibilities under the FMLA and any other applicable leave laws.

• Stay alert for future developments in this constantly changing area of the law.

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If you have questions about the FMLA or state-specific leave laws, please feel free to reach out to one of our experienced labor and employment attorneys.