A Complete Guide to FMLA Employer Notification Requirements: Are You Compliant?

Date: March 2025
Category: Human Resources / Employment Law Compliance

The Family and Medical Leave Act (FMLA) is a cornerstone of US labor law, providing eligible employees with job-protected leave for critical life events. However, simply granting leave isn't enough to stay compliant. As an employer, you have specific obligations regarding communication.

Failure to provide the correct notices at the correct time can constitute "interference" with an employee's FMLA rights, leading to costly legal liabilities. Based on the latest guidance (Fact Sheet #28D), this guide breaks down exactly what notices you must provide, when to provide them, and to whom.

1. Who Must Comply? (Covered Employers)

Before diving into the paperwork, ensure your organization is a "Covered Employer." You are subject to FMLA notification rules if you are:

• Private-Sector Employer: Employing 50 or more employees in 20 or more workweeks in the current or previous calendar year.
• Public Agency: This includes Federal, State, and local governments (regardless of employee count).
• Local Educational Agency: Public and private elementary and secondary schools (regardless of employee count).

Note on Employee Eligibility: Even if you are a covered employer, employees are only eligible for leave if they have worked for you for 12 months, have 1,250 hours of service in the prior year, and work at a location with at least 50 employees within 75 miles.

2. The Four Critical Types of Notices

The Department of Labor (DOL) categorizes employer notification requirements into four distinct types. Missing any step in this chain can result in non-compliance.

A. The General Notice (The Poster & Handbook)

This is the baseline requirement for awareness.

• The Poster: Every covered employer must display the FMLA General Notice poster in plain view of all employees and applicants. This applies even if you currently have no eligible employees.
• The Handbook: If you have FMLA-eligible employees, you must include the General Notice in your employee handbook. If you do not have a handbook, this notice must be distributed to every new hire.
• Language: If a significant portion of your workforce is not literate in English, you are required to provide this notice in a language they can read.

Pro Tip: English and Spanish posters are available free of charge from the Wage and Hour Division (WHD).

B. The Eligibility Notice

When an employee requests leave for a potential FMLA reason (or when you realize their leave might qualify), the clock starts ticking.

• Timeline: You must provide this notice within five business days.
• Content: You must inform the employee whether they are eligible for FMLA leave.
• If Ineligible: You must state at least one reason why (e.g., "You have not worked here for 12 months").

Note: You generally only need to provide this once per leave year for the same qualifying reason, unless the employee's eligibility status changes.

C. The Rights and Responsibilities Notice

Whenever you provide the Eligibility Notice, you must also provide the Rights and Responsibilities Notice. This is usually done simultaneously (Form WH-381 helps with this).

This written notice details the specific expectations for the employee, including:
* The 12-month period used for tracking leave.
* Whether medical certification is required.
* Rules regarding the substitution of paid leave.
* Requirements for paying health insurance premiums while on leave.
* Job restoration rights upon return.
* Status as a "Key Employee" (top 10% salaried staff), if applicable.

D. The Designation Notice

Once you have enough information (such as a medical certification) to determine if the leave is definitely FMLA-qualified, you must officially designate it.

• Timeline: Within five business days of having sufficient information.
• Content: This written notice confirms the leave is FMLA-protected, specifies how much time will be counted against their entitlement, and details any return-to-work requirements (such as a fitness-for-duty certification).
• If Denied: If the leave does not qualify, you must notify the employee in writing that it is not FMLA-protected.

3. Dealing with Language Barriers & Accessibility

Compliance is not just about paperwork; it is about understanding.
* Non-English Speakers: Where a significant portion of the workforce is not literate in English, all required notices (General, Eligibility, Rights & Responsibilities, and Designation) must be provided in a language in which the employees are literate.
* Sensory Impairments: Employers must comply with applicable Federal or State laws regarding notices for sensory-impaired individuals.

4. Consequences of Non-Compliance

It is dangerous to view these notices as "admin work." The DOL views failure to provide these notices as interference, restraint, or denial of an employee's rights.

If found in violation, an employer may be liable for:
* Compensation and benefits lost due to the violation.
* Actual monetary losses (e.g., cost of hiring a caretaker).
* Liquidated damages.
* Equitable relief, including reinstatement or promotion.
* Civil money penalties (specifically for willful violations of posting requirements).

5. Best Practices for Employers

To ensure your organization is fully compliant with Fact Sheet #28D:

1. Audit your breakroom: Is the FMLA poster up? Is it legible?
2. Update your handbook: Does it contain the General Notice policy?
3. Train your managers: Front-line managers are often the first to hear about a leave request. Ensure they know they have a 5-day window to escalate this to HR for the Eligibility Notice.
4. Use DOL Forms: The WHD provides forms (like WH-381 and WH-382) that meet legal requirements. Using these templates reduces the risk of omitting required information.

Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. For specific legal questions regarding FMLA compliance, consult with legal counsel or the U.S. Department of Labor Wage and Hour Division.