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FMLA/CFRA Employer Notice Requirements

by | Feb 11, 2021 | Employee Rights |

General Notice (FMLA)

All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of the FMLA and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed all locations even if there are no eligible employees. Each new employee must be given the information provided in the General Notice.

The General Notice must be accessible to employees by including it in an employee handbook or including all the information contained in the General Notice in the employer’s own specific FMLA policy. Employers that post their handbook electronically meet the General Notice requirement only if it is accessible to all employees.

Notice of Eligibility and Rights and Responsibilities (FMLA/CFRA)

A form titled “Notice of Eligibility and Rights and Responsibilities” is required to be given to the employee within five business days after the employer receives a request for FMLA/CFRA leave or becomes aware that the leave may qualify for FMLA/CFRA. Employers may customize the form as long as it includes, at a minimum, the same information specified in the form.

The “Notice of Eligibility and Rights and Responsibilities” informs the employee whether or not they are eligible for FLMA/CFRA leave (i.e. worked at least 12 months with the employer and worked at least 1,250 hours in the previous 12 months). When a represented employee is denied eligibility based solely on a lack of 1,250 hours of service, there may be a union noticing requirement. Eligibility does not mean the leave has been approved for FMLA/CFRA at this point. The form also provides important information regarding the employee’s FMLA/CFRA rights and responsibilities, information on medical certification requirements, and the consequences for not meeting those requirements, as well as information regarding the return-to-work release. In addition, employer must provide specific written information on what is required of the employee and what might happen in certain circumstances, such as if the employee fails to return to work after FMLA/CFRA leave.

Employers may require at least 30 days’ advance notice when the need for FMLA/CFRA is foreseeable. Foreseeable leave includes planned birth, adoption, foster care placement, or medical treatment. In the case of a serious health condition, if it is not possible to give such advance notice, the employee must submit the request as soon as possible.

Designation Notice (FMLA/CFRA)

After an employee has given notice of the need for leave under the Family and Medical Leave Act (FMLA), it’s the employer’s obligation to determine if the leave qualifies for FMLA. Based on the information provided, the employer then designates the eligible employees which then are notified with a form called the Designation Notice, also known as the Department of Labor’s form WH-382.

The Designation Notice must be given to the employee within 5 business days of the employer getting all of the employee’s completed FMLA forms, including a completed medical certification form. The Designation Notice needs to be reevaluated every 12-months if the leave is longer than 12-months, and separate notices should be provided for each qualifying reason.

For example, if an employee takes FMLA leave for their own medical condition and then needs to take leave for a family member’s situation – separate FMLA forms should be provided for each situation.

The Department of Labor has form WH-382 available for download on its website, but employers can also use a form that can be customized to their particular industry or situation. A custom form can also be used to give specific information about moving forward with the leave request or the leave itself.