This update is the eighth in a series of articles explaining requirements under the Family and Medical Leave Act (FMLA). Revised regulations, which took effect January 16, made sweeping changes to FMLA requirements and procedures.

Among these changes, the regulations now include a new two-step process for employer-provided FMLA notices to employees.

Upon receiving a request for FMLA leave, an employer must first issue a notice of eligibility informing the employee of his or her general eligibility for leave. Second, the employer must determine whether an eligible employee's request for leave will be designated as FMLA leave. These two steps and their requirements are discussed in more detail below.

Step One—Notice of Eligibility and Rights and Responsibilities

When an employee requests FMLA leave, or when the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances.

Employee Eligibility Notification

Notification of eligibility may be oral or in writing. Employee eligibility must be determined and notice provided at the commencement of the first instance of leave for each FMLA-qualifying reason in the applicable 12-month period.

If the employee is NOT eligible for FMLA leave the employee must be notified of one of the following reasons why he is not eligible:

• The employee has not met the FMLA's 12-months length of service requirement
• The employee has not met the FMLA's hours of service requirement
• The employee is not employed at a worksite with 50 or more employees within 75 miles

Written Notice Detailing Expectations and Obligations

If the employee is eligible for FMLA leave, the employer must provide written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations. This information is referred to in the regulations as providing the employee "notice of rights and responsibilities." Such specific notice must include, as appropriate:

• That the leave may be designated and counted against the employee's annual FMLA leave entitlement, if qualifying, and the applicable 12-month period for FMLA entitlement.
• Any requirements for the employee to furnish certification of a serious health condition, serious injury or illness, or qualifying exigency arising out of active duty or call to active duty status, and the consequences of failing to do so.
• The employee's right to substitute paid leave, whether the employer will require the substitution of paid leave, the conditions related to any substitution, and the employee's entitlement to take unpaid FMLA leave if the employee does not meet the conditions for paid leave.
• Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments, and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse).
• The employee's status as a ‘‘key employee'' and the potential consequence that restoration may be denied following FMLA leave, explaining the conditions required for such denial.
• The employee's rights to maintenance of benefits during the FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave.
• The employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave.
• The notice of rights and responsibilities may also include other information—such as whether the employer will require periodic reports of the employee's status and intent to return to work, and may be accompanied by any required medical or other certification form. A prototype notice of eligibility and rights and responsibilities is available on the Department of Labor Web site or by clicking here.

Step Two—Designation Notice

Even if an employee meets the FMLA's general eligibility requirements, the particular leave requested may not necessarily qualify as protected leave under the FMLA. When an employer has enough information to determine whether an eligible employee is requesting leave for a FMLA-qualifying reason (for example, after receiving a medical or other certification), the employer must notify the employee in writing whether the leave will be designated and counted as FMLA leave within five business days, absent extenuating circumstances.

If the employer has sufficient information to designate the leave as FMLA leave immediately after receiving notice of the employee's need for leave, the employer may provide the employee with the notice of eligibility and rights and responsibilities and the designation notice at the same time.

Leave Not FMLA Qualifying

If the leave is not designated as FMLA leave because it does not meet the requirements of the Act (e.g., if the leave is not for a reason covered by FMLA or the employee's FMLA leave entitlement has been exhausted), the notice to the employee that the leave is not designated as FMLA leave may be in the form of a simple written statement.

FMLA-Qualifying Leave

If the employer determines that the leave will be designated as FMLA-qualifying, the designation must include the following:

• If the employer requires paid leave to be substituted for unpaid FMLA leave, the employer must inform the employee of this designation at the time of designating the FMLA leave.
• If the employer will require the employee to present a fitness-for-duty certification to be restored to employment, the employer must provide notice of such requirement with the designation notice. If the employer will require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's position, the employer must so indicate in the designation notice, and must include a list of the essential functions of the employee's position. (If the employer handbook or other written documents (if any) describing the employer's leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances, the employer is not required to provide written notice of the requirement with the designation notice, but must provide oral notice no later than with the designation notice.)
• The employer must notify the employee of the amount of leave counted against the employee's FMLA leave entitlement. If the amount of leave needed is known at the time the employer designates the leave as FMLA qualifying, the employer must notify the employee of the number of hours, days, or weeks that will be counted against the employee's FMLA leave entitlement in the designation notice. If it is not possible to provide the hours, days, or weeks that will be counted against the employee's FMLA leave entitlement (such as in the case of unforeseeable intermittent leave), then the employer must provide notice of the amount of leave counted against the employee's FMLA leave entitlement upon the request by the employee, but no more often than once in a 30-day period and only if leave was taken in that period.

A prototype designation notice is available on the Department of Labor Web site or by clicking here.

Subsequent Requests for FMLA Leave

Subsequent Leave Requests for Same FMLA Reason

Typically, only one notice of eligibility and rights and responsibilities and one designation notice is required for each FMLA-qualifying reason per applicable 12-month period, regardless of whether the leave taken due to the qualifying reason will be a continuous block of leave or intermittent or reduced schedule leave. If the information provided by the employer to the employee in either notice changes, however, (e.g., the employee exhausts the FMLA leave entitlement), the employer must provide, within five business days of receipt of the employee's first notice of need for leave subsequent to any change, written notice of the change.

Subsequent Leave Requests for Different FMLA Reason

If, at the time an employee provides notice of a subsequent need for FMLA leave during the applicable 12-month period due to a different FMLA-qualifying reason, and the employee's eligibility status has not changed (for example, the employee has not worked the required number of hours in the previous 12 months), no additional eligibility notice is required. If, however, the employee's eligibility status has changed, the employer must notify the employee of the change in eligibility status within five business days, absent extenuating circumstances. The employer must provide a designation notice for each different FMLA-qualifying reason.

Notice Regarding Department of Labor Prototypes

Many employers choose to use the prototype Notices of Eligibility and Rights and Responsibilities and the prototype Designation Notice provided by the Department of Labor. These forms can provide an employer added confidence that if the forms are completed in a manner consistent with the revised FMLA regulations and the employer's practices and policies, the employer is meeting its obligations with regard to information that must be given to an employee upon notice of an employee's need for FMLA leave.

Employers are not, however, required to use the prototype notices. An employer may wish to revise the notices to incorporate its policies and simplify the process, resulting in less administrative work and less room for error each time an employee requests leave. Because of the complexity of the FMLA regulations, we recommend that any changes made to the prototype notices be made in consultation with legal counsel.

Consequences of Failing to Provide Required Notices

Failure to follow the notice requirements as discussed above may constitute an interference with, restraint of, or denial of the exercise of an employee's FMLA rights. An employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.

Going Forward

Employers must revise their FMLA policies, forms and practices in light of the new regulations. For assistance in doing so, please contact one of the lawyers in the Faegre & Benson employment counseling and compliance practice.

Further details are necessary for a complete understanding of the subjects covered by this summary. For this reason, the specific advice of legal counsel is recommended before acting on any matter discussed in this article.