What does the FMLA’s eligibility notice require?

An employer’s obligation to notify an employee of his or her eligibility to take FMLA leave typically is not triggered until the employee has provided the employer with sufficient information to suggest that the FMLA may be at issue. Employers may provide the notice of eligibility either orally or in writing.

Timing. New rules issued in November 2008 extend the timeframe for responding to an employee’s FMLA leave request to five business days, up from two business days.

Employee eligibility is determined (and notice must be provided) at the beginning of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period. Absences for the same qualifying reason are considered a single leave, and employee eligibility for that reason does not change during the applicable 12-month period.

If an employee needs FMLA leave for a different FMLA-qualifying reason in the same leave year, but is found to be ineligible, the employer must notify the employee of the change in eligibility status within five business days of the leave request for the second reason, absent extenuating circumstances.

Content. The notice must indicate eligibility or ineligibility to take FMLA leave. The determination of whether the employee’s reason for leave is FMLA-qualifying, or whether the employee has enough FMLA leave left to take, is addressed separately as part of the designation process (See ¶15,314).

If an employee is not eligible for FMLA leave, the eligibility notice must include at least one reason why the employee is ineligible. For example, an employer may need to indicate that an employee has not worked long enough to meet the 12-month length-of-service requirement.

If an employee is eligible for FMLA leave, the employer needs to furnish a rights and responsibilities notice at the same time that the eligibility notice is provided (see ¶15,313).

Sample notice. Previously, employers could use Form WH-381, Employer’s Response to Employee Request for Family or Medical Leave, to notify employees of their eligibility for FMLA leave. The form has been reworked and is now called Notice of Eligibility and Rights & Responsibilities. Part A of this optional form may be used by employers to notify employees of their eligibility. The revised Form WH-381 is reproduced in Appendix D of the regulations. See Notice of Eligibility and Rights & Responsibilities at ¶15,340.