What does the FMLA’s general notice require?

The previous poster and policy requirement to include FMLA information in employee handbooks or other written benefits and leave guidance have merged into one general notice obligation under regulations issued in November 2008. Covered employers, including those without any eligible employees, must post a general notice explaining the FMLA’s provisions, as well as procedures for filing a complaint. Although not new, the fact that employers without eligible employees are similarly subject to the posting requirement is now separated out in the regulations to add clarity. As under the prior rules, the posted notice must be legible and displayed prominently where it can be readily seen by employees as well as applicants.

Electronic posting. The new rules allow employers to post the general notice electronically, rather than on paper, as long as it otherwise meets the regulatory requirements. However, in order for the posting requirements to be met, all employees and applicants must have access to the electronic information. If an employer has some employees who do not have employer-provided computer access, the employer must post a paper copy on its premises. Also, if an employer posts the notice on a company intranet that is not accessible to applicants, additional posting is required in a conspicuous place where notices for applicants are customarily posted.

Penalty. Employers that willfully violate the posting requirement face a $110 civil money penalty for each separate offense (up from the $100 under the prior regulations).

Distribution requirement. Employers with eligible employees-even those with only one eligible employee-also need to distribute to employees the same general notice that is posted. Employers have two alternatives for distributing the general notice:

1. They may include the general notice in their employee handbooks or other written guidance to employees concerning employee benefits or leave rights; or

2. Where such materials do not exist, they may provide the general notice to each new employee upon hiring.

In either case, distribution may be accomplished electronically. Incorporating the general notice into an electronic employee handbook is acceptable, as long it otherwise satisfies the regulatory requirements.

Sample general notice. An expanded prototype general notice, WH Publication 1420, may be used to satisfy these requirements; it is reproduced in Appendix C of the regulations. Copies are available at local Wage and Hour Division offices and at http://www.wagehour.dol.gov . See Notice to Employees of Rights Under FMLA at ¶15,320.

Employers may choose to use another format for the general notice, as long as it includes (at a minimum) all the information contained in the DOL’s prototype.

As under the prior regulations, where a significant portion of workers do not speak English, employers must provide the general notice in the language in which they are literate. Also, as under the prior rule, employers furnishing FMLA notices to sensory-impaired individuals must comply with applicable federal and state laws.