FMLA Notice Requirements For Employers and Employees

Both employers and employees have to comply with notice requirements under the Family and Medical Leave Act (FMLA).

The federal Family and Medical Leave Act (FMLA) gives eligible employees the right to take time off work to bond with a new child, care for a family member with a serious health condition, recover from their own serious health condition, handle matters relating to a family member's military service, or care for a military family member who suffered a serious illness or injury on active duty. (For more on employee rights under the FMLA, see FMLA Basics: Ten Things Employees Should Know.)

The FMLA imposes notice requirements on both employees and employers. Employees have to give notice of their need for leave. Employers must give a series of notices, intended to inform employees of their rights and obligations under the law.

Employee Notice Requirements

The main employee notice requirement under the FMLA is that employees must inform employers of their need to take FMLA leave. The timing of this notice depends on the circumstances:

  • When the employee's need for leave is foreseeable, the employee must generally give at least 30 days' notice. For example, an employee who has scheduled surgery in two months or knows that a family member will start chemotherapy in six weeks must give at least 30 days' notice of the need for FMLA leave. If there is a change of circumstances, the employee must give as much leave as is practicable under the circumstances. The same is true if the employee knows she will need leave, but isn't sure exactly when it will begin; for example, an employee who is pregnant or preparing to adopt a child knows she will need time off, but won't necessarily know the exact date leave will begin.
  • When the employee's need for leave is not foreseeable, the employee must give as much notice as is practicable under the circumstances. Usually, this means the employee should give notice the same business day or the next business day after the employee learns he will need FMLA leave.

FMLA leave is unpaid. If an employee wants to use accrued paid leave (for example, sick time or vacation days) during FMLA leave, the employee must follow the employer's notice procedures for these types of leave. For example, if an employee wants to use vacation time while out with a new baby, the employee must give as much notice as the employer's rules require. If the employee is unable to follow the employer's policy, the employer does not have to allow the employee to use paid leave. However, the employee is still entitled to use unpaid FMLA leave.

Example: Joe's son is hit by a car on the way to school. Joe informs his employer immediately, and misses a week of work. This time counts as FMLA leave, because Joe gave as much notice as was practicable under the circumstances. However, if Joe's employer requires employees to give 30 days' notice before taking vacation time, Joe's employer can prohibit him from using his vacation time to get paid for this week.

Employer Notice Requirements

There are four types of notice employers must provide under the FMLA:

  • General Notice. Employers must post a notice in the workplace -- and distribute it to all employees -- explaining FMLA rights.
  • Eligibility Notice. When an employee requests time off that may qualify as FMLA leave, the employer must tell the employee whether or not the employee is eligible for FMLA leave. If the employee isn't eligible for leave, the notice must include at least one reason why the employee is ineligible.
  • Rights and Responsibilities Notice. Along with the eligibility notice, the employer must provide a notice explaining the employee's rights and obligations under the law, as well as the consequences if the employee doesn't meet those obligations.
  • Designation Notice. Within five business days after the employer receives enough information to determine whether an employee's leave request qualifies for FMLA coverage, the employer must give the employee a designation notice. This notice must explain whether or not the leave is FMLA leave, how much time will be counted against the employee's FMLA leave allotment, and other information.

Need More Information?

The FMLA's notice requirements can get complicated. If you need help understanding the rules, check out the information available at the Department of Labor's FMLA page. you can also find detailed information on every aspect of the FMLA in Nolo's book, The Essential Guide to Family and Medical Leave.

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