Employer Notice Obligations

The FMLA regulations combine employer notice obligations in one section and establish consistent timeframes for the notices employers must provide. Covered employers have four primary FMLA notice obligations:

• General notice.
• Eligibility notice.
• Rights-and-responsibilities notice.
• Designation notice.

Cities should use the current U.S. Department of Labor FMLA forms or equivalent notices that contain the required information.

General notice
Every covered employer must post the current U.S. Department of Labor FMLA notice in a conspicuous location where employees and applicants can see it. A city must post the notice even if it has no employees who are individually eligible for FMLA leave. Electronic posting is permitted if it otherwise meets the posting requirements and is accessible to employees and applicants.

A covered employer that has any FMLA-eligible employees also must provide the general notice to employees. The city may satisfy this requirement by:

• Including the required FMLA information in an employee handbook or other written guidance about benefits or leave rights; or
• Providing a copy of the general notice to each new employee when hired.

Electronic distribution is permitted. The city should ensure that new employees, employees who work remotely, and employees on leave have reasonable access to the information.

Eligibility notice
When an employee requests leave that may qualify under the FMLA, or when the city obtains information indicating that an employee’s leave may be for an FMLA-qualifying reason, the city must provide an eligibility notice within five business days, absent extenuating circumstances.

The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible, the notice must state at least one reason why, such as:

• The employee has not worked for the city for at least 12 months.
• The employee has not worked at least 1,250 hours during the preceding 12 months.
• The employee does not work at a location where the city employs at least 50 employees within 75 miles.

The city generally must provide an eligibility notice only once for each qualifying reason during the city’s applicable 12-month FMLA period. If the employee’s eligibility status changes during that period, the city must provide a new eligibility notice within five business days after the employee requests additional leave for the same qualifying reason.

The U.S. Department of Labor’s optional Form WH-381 combines the eligibility notice and rights-and-responsibilities notice.

Rights-and-responsibilities notice
The city must provide a written rights-and-responsibilities notice each time it provides an eligibility notice. The notice should explain the employee’s obligations and the consequences of failing to meet them.

The notice must include, as applicable:

• That the leave may be designated and counted as FMLA leave.
• The city’s 12-month period for calculating FMLA entitlement.
• Whether medical certification, military certification, or other documentation is required.
• The deadline for returning required certification.
• The consequences of failing to provide complete and sufficient certification.
• Whether the employee must use paid leave concurrently with FMLA leave.
• The employee’s right to unpaid FMLA leave if the employee does not qualify for paid leave.
• The employee’s obligation to make insurance premium payments and the consequences of failing to make required payments.
• The employee’s restoration rights at the end of FMLA leave.
• Whether the employee may be a “key employee” and the potential effect on restoration rights.
• Any requirement to provide a fitness-for-duty certification before returning to work.
• The employee’s responsibility to provide sufficient notice of future absences.

The city must provide an updated rights-and-responsibilities notice if the information changes. For example, the city may need to issue an updated notice if it changes the type of medical certification required, its designation of paid leave, the method used to calculate the FMLA 12-month period, or another material requirement.

Designation notice
The designation notice is the final notice in the initial FMLA process. Once the city has enough information to determine whether leave qualifies under the FMLA—for example, after receiving a complete and sufficient medical certification—the city must notify the employee whether the leave will be designated as FMLA leave and counted against the employee’s FMLA entitlement.

The city must provide the designation notice within five business days after it has enough information to make the determination, absent extenuating circumstances. The employer is responsible for designating leave as FMLA-qualifying; an employee cannot delay designation to preserve FMLA leave for later use.

The designation notice must state:

• Whether the leave is approved and designated as FMLA leave.
• Whether paid leave will run concurrently with FMLA leave.
• The amount of leave that will be counted against the employee’s FMLA entitlement, when the amount is known.
• Whether the city requires a fitness-for-duty certification before the employee returns to work.
• Whether the city is denying FMLA leave and, if so, information sufficient for the employee to understand the reason for the denial.

The U.S. Department of Labor’s optional Form WH-382 may be used as the designation notice.

Cities should establish an internal process to ensure that HR or the designated FMLA administrator:

• Receives notice of every potential FMLA event promptly.
• Issues eligibility and rights-and-responsibilities notices within five business days.
• Sends any required certification form with the rights-and-responsibilities notice.
• Tracks certification due dates and requests for additional information.
• Issues the designation notice within five business days after receiving enough information to decide whether leave qualifies.
• Codes approved FMLA leave accurately.
• Maintains medical certifications and FMLA medical information in confidential files separate from regular personnel records.