Stuff happens. In our office, there are countless ways life might come before work. Matt might injure himself on the dance floor while “chaperoning” Kelsey’s prom. Shari might throw Karen from the side-by-side while traveling between their houses – again. Can Shari claim family leave to take care of them both? We’ll explore that question and more as we dive into the Family Medical Leave Act (FMLA) through a 4-part series.
Part 2: Noticin’ You Noticin’ Me
Of course, it was Akon that brought Matt out to the dance floor. And, I can see why he could relate to the song, given the fact that Shari is such a dangerous driver of small motor vehicles. Now that you have the FMLA basics down from Part 1, you should be recognizing that Matt’s dance floor injury and Shari’s reckless driving could have FMLA implications for KSB as the employer of Matt, Karen, and Shari. Assuming KSB was a covered employer, the next step would be for HR Coordinator Williams to ensure that KSB met its FMLA notice obligations to each employee.
General Notice
Think of notice obligations in two parts:
First, a covered employer must conspicuously display notice about the existence of the FMLA on its premises. This notice must explain the FMLA’s provisions and provide information concerning the procedures for filing complaints of violations of the FMLA with the Wage and Hour Division.
Second, employers are responsible in all circumstances for designating leave as FMLA-qualifying. Employees need not refer to the FMLA when requesting leave. An employer’s notice obligation begins the moment the employer acquires knowledge that leave might be for a FMLA purpose.
The first type of notice is known as general notice. All schools are covered by the FMLA and are required to post a notice explaining the FMLA's provisions. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. The poster and the text must be large enough to be easily read and contain fully legible text. Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.
Furthermore, an employer must include general notice in its employee handbook or distribute a copy upon hiring each employee.
An example of such a notice may be found on the Department of Labor website: https://www.dol.gov/agencies/whd/fmla/forms.
Eligibility Notice
The second type of notice is known as eligibility notice. As soon as an eligible employee requests FMLA leave or 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.
The notice must state whether the employee is eligible for FMLA leave. If the employee is not eligible, the notice must state at least one reason why. Possible reasons include:
The employee has not been employed for at least 12 months.
The employee does not have at least 1,250 hours of service in the 12 months prior to leave.
The employee works at a worksite where fewer than 50 employees are employed by the employer within 75 miles of the jobsite.
With eligibility notice, the employer must include notice of specific rights and responsibilities related to the employee’s eligibility to take FMLA leave. At minimum, this notice will include:
That the leave may be designated and counted against the employee's annual FMLA leave entitlement if qualifying.
The applicable 12-month period for FMLA entitlement.
Informing the employee whether the employee will be required to provide certification of the FMLA-qualifying reason for leave.
Informing the employee of the employee’s right to substitute paid leave (including any conditions related to such substitution, and the employee’s entitlement to unpaid FMLA leave if those conditions are not met) and whether the employer will require the substitution of paid leave.
Any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (see § 825.210), 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.
Assuming the employee is eligible, the employer must also deliver a designation notice, which we will discuss more next week in Part-3.
KSB recommends schools utilize the DOL’s forms. The eligibility notice can be accessed at: https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/WH-381.pdf.
Wait, Don’t Employees Have Some Obligations Too?
Yes, but we want to emphasize that ultimate responsibility for determining whether leave is FMLA-qualifying is with the employer. While an employee must comply with the employer’s usual requirements for requesting leave, the employee need not expressly seek FMLA-qualifying leave. For example, an employee does not need to say “FMLA” or “serious health condition” for the employer’s obligations to begin. Instead, the employer is expected to recognize when the requested leave may be for an FMLA-qualifying reason.
Generally:
An employee must comply with the employer’s usual requirements for requesting leave.
Employees must request leave at least 30 days in advance when the leave is foreseeable.
If the leave is unforeseeable or not foreseeable by 30 days, the employee must provide notice as soon as possible and practicable under the circumstances.
If an employee does not provide notice of foreseeable leave, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. In all other cases, the employer can typically delay FMLA coverage for the amount of time the employee could have but failed to provide notice.
Conclusion
If you have any questions about notice obligations under the FMLA or want to hear more about Matt’s dance floor escapades, just provide notice to your favorite KSB attorney at (402) 804-8000 or reach out to the whole squad at ksb@ksbschoollaw.com.
Part-3 Teaser
Last week, we discussed the basics of the FMLA, including spotting FMLA-triggering events. Today we covered both types of employer notice obligations. You know about employee eligibility and the requirements that come with it, but what does the rest of your day look like if an employee elects FMLA leave? Next week we’ll kick it into high gear to cover the mechanics of FMLA leave.