FMLA Notices: Where and How?

by Joseph "Trey" L. Wood, III

Under the FMLA regulations, employers are required to post the Department of Labor's "General Notice" poster and publish it to employees. The poster, also known as WH Publication 1420, is available on the DOL's website. Employers covered by the FMLA must post a copy of the poster in each location where it has any employees, even if there are no FMLA-eligible employees at that location. The regulations state that the notice must be posted "prominently where it can be readily seen by employees and applicants for employment." The text "must be large enough to be easily read" and "must contain fully legible text." Large-format copies of the poster are available from many vendors. However, employers must ensure that the text of the poster is fully legible and identical to that in the DOL's model notice.

The poster may be posted electronically, so long as it "otherwise meets the requirements" of the rule. While posting on an open website would satisfy this requirement, posting on an intranet page not accessible to the public would arguably violate the requirement that the poster be available to applicants for employment as well as employees.

Employees must also be provided with the General Notice in the employer's employee handbook, policy manual, or "other written guidance to employees concerning employee benefits or leave rights." If no such materials exist, a copy of the notice must be given to each new employee upon hiring. In either case, the notice may be given electronically. For employers with an online employee policy manual, posting in those materials is sufficient. As with the poster, while employers may use a different format, all of the information included in the DOL's model notice must be provided. Prudent employers will obtain an acknowledgment from each employee that he or she has received and reviewed the handbook or manual.

If a substantial portion of an employer's workforce speaks a language other than English, the notice must be provided in a language in which the employees are literate. The Spanish version of the poster is available at: http://www.dol.gov/whd/regs/compliance/posters/fmlasp.pdf.

Employers who fail to comply with the General Notice requirements under the rules may face civil monetary penalties. More importantly, failing to provide the notice can preclude an employer from using key defenses to an FMLA claim, such as the employee's failure to give proper notice of the need for FMLA leave.