What notice and designation requirements do employers have under the new FMLA rules?

Figuring out FMLA compliance and FMLA rules, not to mention FMLA leave administration, can present some of the greatest HR management headaches.

If you are a covered employer, you have to put up an FMLA poster, even if you have no employees who qualify as eligible. If you use a handbook, put the policy in the book. If you do not, be sure to hand the written notice to each new hire. The required poster is separate from that notice.

The old rules used one form, WH-381, to handle and answer medical leave requests.

Notice of Eligibility

You owe the employee a written notice stating whether the person is eligible for FMLA leave as soon as you can, and in any event no later than five business days after the leave request, or after you learn the employee will need leave. If an exigent circumstance prevents the five-day deadline, the deadline is excused. Be sure your notice does all of the following:

Note the date the employee asked for leave and what you believe to be the reason for the request on the first notice.

Next, your notice should say whether the employee meets the eligibility requirements, and if not, why.

Note who pays for health insurance premiums on leave, and whether any paid leave will run concurrently. If the employee is a key worker, your first notice must note that. If you expect periodic reports needed while the person is away, say so.

The last item that has to be on your notice of eligibility is which method you use to calculate the 12-month period for FMLA leave.

No matter what type of leave someone needs, eligibility for an FMLA leave is judged as of the date it first starts in an FMLA year, for any reason. All leave taken for the same reason counts as one FMLA period. Remember that employees stay eligible for leave for the same problem for the whole 12 months.

Every eligible employee gets two separate notices. With your eligibility notice you must give a written notice to the employee of the employee’s rights and responsibilities under the FMLA. Your deadline for handing this over to the employee is the same as the eligibility notice.

The old WH-381 Form was an optional way to fill out an eligibility notice to a new FMLA employee.

You must give the employee written notice whether the leave qualifies under the FMLA. You have a maximum of five business days after you get enough information to make a designation. But you can decide sooner, if you have the facts you need. If you did everything together with your eligibility notice, no problem. “Exigent circumstances” excuse the limit here as well.

Note that the designation notice may end in any one of five ways.

• The leave is a covered leave and approved.
• Or you need more information to decide whether the leave request is covered.
• Or you are denying the FMLA leave request outright.

You may also use the form to state the employee is not covered under the FMLA. Lastly, the FMLA notice says the employee has used up his or her 12-month entitlement.

If the leave is FMLA approved, your FMLA notice says the expected amount of leave that you have approved and whether any paid leave will be running at the same time. Also, be clear in saying whether you will need a doctor’s okay for a return to work.

Give a written notice if you need more information to decide whether FMLA leave is covered. Be specific about what is missing, then allow the worker at least seven calendar days to give you the information. You also can require a second or third medical opinion, at your expense. If the employee does not give you the requested information within the seven days, you may deny the FMLA leave.

In deciding, you can use information from the ADA or from any benefits programs, not just what the medical certification says.

Sometimes the notice deadline gets missed. Retroactive notices to deny or approve time off as FMLA leave are allowed as long as the delayed notice did not harm the employee. When you do not give an employee written notice of FMLA designation you may be guilty of interference with rights. The employee can sue for damages, including relief tailored to the harm.