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- Family and Medical Leave Act Advisor

Employer Rights and Responsibilities - Notice Requirements

Each time an eligibility notice is required, the employer must also provide written notice to the employee detailing the specific expectations and obligations of the employee and the consequences of failing to meet them. The rights and responsibilities 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 FMLA leave period;
  • Any requirements for the employee to furnish certification of the need for leave and the consequences of failing to do so;
  • The employee's right to substitute paid leave or whether the employer will require it, the conditions related to any substitution, and the employee's entitlement to take unpaid FMLA leave if he or she 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 failing to make such payments on a timely basis;
  • The employee's status as a "key employee" and the possibility that restoration may be denied following FMLA leave, explaining the conditions required for such denial;
  • The employee's rights to maintenance of benefits during FMLA leave and restoration to the same or an equivalent job upon return from FMLA leave; and
  • 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 rights and responsibilities notice may include other information, such as any requirement for the employee to provide periodic reports on status and intent to return to work. The notice may be accompanied by any required certification form as well.

If the specific information provided by the notice changes with respect to a subsequent period of FMLA leave, the employer must, within five business days of receipt of the employee's request for leave subsequent to the change, provide written notice referencing the prior notice and providing any of the information in the notice that has changed. Additionally, employers are expected to answer questions from employees concerning their rights and responsibilities under the FMLA in a timely manner.

Employers may use optional form WH-381 to provide both eligibility and rights and responsibility notices.

Continue to Employer Designation Notice Requirements or Return to Employer Rights and Responsibilities Menu.

For more information on this aspect of the FMLA, see the FMLA regulations: ยง 825.300(c)