HR Compliance Alert: Mastering FMLA Employer Notification Requirements

Topic: Employment Law / HR Best Practices
Based on: DOL Fact Sheet #28D (March 2025)

The Family and Medical Leave Act (FMLA) does more than just grant leave; it creates a specific communication loop between the employer and the employee. For Human Resources professionals and business owners, understanding what to say, when to say it, and how to document it is the difference between a smooth leave process and a costly lawsuit.

Failure to provide timely notices can be considered "interference" with an employee’s rights. This guide breaks down the four critical notice requirements outlined in DOL Fact Sheet #28D to keep your organization compliant.

1. Am I a "Covered Employer"?

Before worrying about notices, confirm your status. You are a covered employer under the FMLA if you are:
* Private Sector: Employing 50 or more employees in 20 or more workweeks in the current or preceding calendar year.
* Public Agency: A Federal, State, or local government agency (regardless of size).
* Educational Agency: A public or private elementary or secondary school (regardless of size).

Employee Eligibility Recap:
Remember, even if you are covered, an employee is only eligible if they have worked for you for 12 months, logged 1,250 hours in the past year, and work at a location with 50+ employees within 75 miles.

2. The Four Pillars of FMLA Notification

The Department of Labor (DOL) mandates four specific types of notices. Missing any step in this timeline is a compliance violation.

Phase 1: General Awareness

The General Notice

This is the "proactive" phase. You must inform your workforce about FMLA rights before anyone even asks for leave.
* The Poster: You must display the FMLA poster in plain view for all employees and applicants. This is mandatory even if you have no eligible employees yet.
* The Handbook: If you have any FMLA-eligible employees, this general notice must also be included in your employee handbook. If no handbook exists, it must be distributed to every new hire.
* Accessibility: If a significant portion of your workforce is not literate in English, you must provide this in a language they can read.

Phase 2: The Request

The Eligibility Notice

When an employee requests leave for an FMLA-qualifying reason (or you become aware the leave might qualify), the clock starts.
* The Deadline: You must provide this notice within 5 business days.
* The Content: You must tell the employee if they are eligible (based on tenure and hours).
* The Denial: If they are not eligible, you must state at least one reason why (e.g., "You have not met the 1,250-hour requirement").

Phase 3: Setting Expectations

The Rights and Responsibilities Notice

This is usually provided at the same time as the Eligibility Notice. It is a written document that details the "rules of the road" for the employee’s specific leave. It must cover:
* Designation warning: A statement that this leave may be counted as FMLA.
* Certification: Whether medical certification is required (and the deadline to provide it).
* Financials: Rules regarding the substitution of paid leave and how to pay health insurance premiums while absent.
* Job Security: Confirmation of their right to job restoration.
* Key Employee Status: Notification if they are a "key employee" (top 10% salaried) and potential restoration limitations.

Phase 4: Confirmation

The Designation Notice

Once you have enough information (usually after receiving the medical certification) to determine if the leave qualifies, you must officially designate it.
* The Deadline: Within 5 business days of having sufficient information.
* The Content: This written notice confirms that the leave is FMLA-protected and specifies how much time will be deducted from their 12-week entitlement.
* Fitness-for-Duty: It must state if a fitness-for-duty certification is required to return to work.
* Incomplete Info: If the certification provided is insufficient, use this notice to tell the employee exactly what information is missing to fix it.

3. Critical Compliance Nuances

The "Five Business Day" Rule

If you take nothing else from this guide, remember the number five.
* Eligibility Notice? Due within 5 business days of the request.
* Designation Notice? Due within 5 business days of determining the leave qualifies.
* Change in Status? Due within 5 business days.

Language and Accessibility

The DOL is strict regarding accessibility.
* Non-English Speakers: If a significant portion of your workforce is not literate in English, all required notices must be provided in a language they can read.
* Sensory Impairments: You must comply with federal/state laws regarding notices for sensory-impaired individuals.

Electronic Distribution

You are permitted to distribute these notices electronically (e.g., via email or an HR portal), provided they meet all content requirements and are accessible to the employee.

4. The Cost of Non-Compliance

Failing to provide these notices is not just a clerical error; it is a legal liability. The DOL considers failure to notify as interference with an employee's FMLA rights.

Potential Consequences Include:
* Lost Wages & Benefits: You may be liable for compensation the employee lost because they didn't know their rights.
* Actual Monetary Losses: Reimbursement for costs like caretaking expenses incurred due to the violation.
* Equitable Relief: Forced reinstatement or promotion of the employee.
* Civil Money Penalties: Specific fines exist for willfully violating the posting (General Notice) requirement.

5. Employer Checklist

To ensure you are audit-ready, check these items today:

1. [ ] Check the Wall: Is the WHD FMLA poster up and visible?
2. [ ] Review the Handbook: Is the General Notice policy current?
3. [ ] Download Forms: Are you using the DOL's optional forms (WH-381 for Eligibility/Rights & Responsibilities, and WH-382 for Designation)? These are the safest way to ensure you don't miss required fields.
4. [ ] Train Managers: Do your frontline supervisors know to report leave requests to HR immediately so the 5-day clock doesn't expire?

Disclaimer: This blog post is based on Federal DOL Fact Sheet #28D and is intended for informational purposes only. It does not constitute legal advice. State laws may provide additional leave protections. Always consult with legal counsel or the Wage and Hour Division for specific situations.