Act Now: Employers Must Replace FMLA General Notice by March 8
Author: Melissa Burdorf, XpertHR Legal Editor
On February 6, XpertHR reported on the release of a Family and Medical Leave Act (FMLA) final rule implementing and interpreting the Family and Medical Leave Act amendments expanding military-related leave entitlements and the availability of leave for airline flight crew employees. One result of the final rule is that employers must replace their general notice, explaining an individual's FMLA rights and responsibilities by March 8.
The Department of Labor (DOL) has already updated their general notice (WHD Publication 1420), that employers may use to satisfy their general notice obligation. If an employer chooses to use their own general notice, it must make sure the notice includes all of the WHD Publication 1420 current information.
Employers should:
- Replace all old notices/posters in all locations with the updated DOL notice (WHD Publication 1420), or an employer-created equivalent;
- Update any employee handbooks or other written documentation provided to employees concerning benefits and leave rights;
- Provide a copy of the new notice to all new employees upon hire (if it is not included in an employee handbook provided to new hires);
- Provide a copy of the new notice to all employees requesting FMLA leave on or after March 8; and
- Update any electronic postings.
If a substantial portion of the employer's workforce speaks a language other than English, the employer should make sure to update the general notice in that language.
Employers that willfully fail to comply with the FMLA's general notice requirements may face monetary penalties. Failure to follow the general notice requirement may also be considered an attempt to interfere with an employee's ability or right to take FMLA leave by keeping the employee in the dark about his or her rights. In addition, an employer may lose the ability to defend against an FMLA claim by arguing that the employee did not properly follow the FMLA, such as failing to provide proper notice of the need for leave.
Employers should also note that if they require employees to submit a certification of the need for leave, those certification forms should also be updated on or before March 8. The DOL recently added a new optional-use form (WH-385-V) for the certification of a serious injury or illness for a covered veteran. Other FMLA-optional-use forms were recently updated to reflect necessary changes as a result of the final rule. While an employer does not have to use the DOL certification forms, if an employer wishes to develop its own forms, it should take care to seek only the information permitted by law.
Additional Resources
Employee Leaves > FMLA > General Notice Posting Requirements
Employee Rights and Responsibilities Under the Family and Medical Leave Act Poster