What does the FMLA’s rights and responsibilities notice require?

If an employee is eligible for FMLA leave, an employer must provide a written notice that details the specific expectations and obligations of the employee, as well as the consequences of a failure to meet those obligations. While not a new requirement, revised regulations issued in November 2008 now call this the rights and responsibilities notice.

Timing. Employers must provide employees with a rights and responsibilities notice at the same time they provide the eligibility notice (see ¶15,312). If an employee’s leave has already begun, an employer should mail it to the employee’s address of record.

Content. The rights and responsibilities notice must inform employees that the leave may be designated and counted against their annual FMLA leave entitlement and the method used for establishing the applicable 12-month period (or, for military caregiver leave, the start date of the single 12-month period).

The notice must also communicate any requirement to provide certification, how to pay premiums for continuing benefits, and job restoration rights upon return from FMLA leave, among other items. Consistent with prior requirements, employers need to specify any conditions surrounding the right to substitute paid leave, but the new rules additionally require employers to notify employees of their entitlement to take unpaid FMLA leave if the employee does not meet the conditions for using paid leave. Reference to existing, employee-accessible policies concerning substitution of paid leave is acceptable.

The rights and responsibilities notice may include other information as well, such as a requirement to provide periodic reports of the employee’s status and intent to return to work. Employers may (but are not required to) provide a certification form with the notice of rights and responsibilities.

An employer must notify an employee in writing of any change in the information contained in the rights and responsibilities notice within five business days of the first notice of the need for leave following such change. For example, if an employee’s initial leave period was paid and the subsequent leave period will be unpaid, an employer may need to notify the employee how to make premium payments.

Employers need to responsively answer employees’ questions about their rights and responsibilities under the FMLA.

Sample notice. Form WH-381, previously used to notify employees of their eligibility for FMLA leave, has been reworked and is now also used to notify employees of their rights and responsibilities. Called Notice of Eligibility and Rights & Responsibilities, Part B of this optional form may be used by employers to satisfy their rights and responsibilities notice obligations.

The revised Form WH-381 is reproduced in Appendix D of the regulations. See at ¶15,340. Copies are available at local Wage and Hour Division offices and at http://www.wagehour.dol.gov . Employers may adapt the sample notice as appropriate to meet the notice requirements.

Where a significant portion of workers do not speak English, employers must translate the notice into the language in which they are literate. Employers furnishing FMLA notices to sensory-impaired individuals must also comply with applicable federal and state laws.

The notice of rights and responsibilities may be distributed electronically, as long it otherwise satisfies the regulatory requirements. However, it’s important to recognize that employees may already be on leave and may not have access to employer-provided computers.