FMLA Notice Requirements for Employers: The Four Notices and Their Deadlines

The Four FMLA Notice Requirements at a Glance

The DOL forms are optional. The Wage and Hour Division (WHD) says employers may use their own forms if they give the same basic notice information. Our FMLA forms guide for employers walks through each form field by field.

Notice 1: The General Notice (Poster and Handbook)

The general notice has two parts, and employers often satisfy one and forget the other.

The posting duty

Every covered employer must post, and keep posted, a notice explaining the Act and how to file a complaint with WHD. The regulation sets several conditions:

• It must be in conspicuous places where employees are employed, posted prominently where it can be readily seen by employees and applicants.
• The poster and its text must be large enough to be easily read and fully legible.
• A covered employer must post it even if no employee is eligible for FMLA leave. A covered employer with a small satellite office still posts there.

WHD's poster page listed April 2023 as the current revision when this article was written, and stated that the April 2016 and February 2013 versions still fulfill the requirement. Check WHD's FMLA poster page for the current revision.

Electronic posting

The regulation says electronic posting is sufficient "as long as it otherwise meets the requirements of this section." That qualifier matters. In Field Assistance Bulletin 2020-7, WHD told its investigators that, for notices that must be continuously posted, electronic posting will in most cases substitute for a hard copy only where all employees work exclusively remotely, all customarily receive information from the employer electronically, and all have readily available access to the posting at all times. For the FMLA specifically, the bulletin gives the example of an employer that does all hiring and work remotely and posts the notice on an internal or external site accessible to all employees and applicants.

In practice: if you have a physical worksite, keep the paper poster up and treat the intranet copy as a supplement; tell employees where the electronic notice is; and remember that a poster behind an employee login is not visible to applicants. Check whether Field Assistance Bulletin 2020-7 remains current WHD enforcement policy.

The distribution duty

If you have any eligible employees, you must also give the general notice to each employee, either by including it in the employee handbook or other written guidance on benefits or leave rights, if such materials exist, or by distributing a copy to each new employee at hire. Either can be done electronically. You may reproduce the text of the DOL poster or use your own format, provided it contains at least all of the same information. See How to Write an Employee Handbook.

Language

Where a significant portion of the workforce is not literate in English, the employer must provide the general notice in a language in which those employees are literate. The regulation does not define "significant portion," so document how you made the call. The same translation duty carries over, by express cross-reference, to the eligibility notice and the rights and responsibilities notice.

The penalty for not posting

An employer that willfully violates the posting requirement may be assessed a civil money penalty by WHD. The amount is inflation-adjusted; check the current cap in 29 CFR 825.300(a)(1) and on WHD's civil money penalty page.

The penalty is small. The real exposure is described below.

Notice 2: The Eligibility Notice

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

Note the second trigger. The employee does not have to say "FMLA." The regulations on employee notice say that an employee seeking leave for the first time for a qualifying reason need not expressly assert FMLA rights or even mention the Act. In practice, the five days often begin when a supervisor hears enough to suggest a qualifying reason, which is why FMLA training for managers is a notice-compliance issue and not only a courtesy. For the employee's side of the exchange, see Notice Requirements for Employees Requesting FMLA Intermittent Leave.

What it must say. Whether the employee is eligible. If not, the notice must state at least one reason why: months of employment, hours of service in the 12-month period, or the 50-employees-within-75-miles test. The tests themselves are covered in FMLA Eligibility Requirements: Who Qualifies for Leave.

How often. Eligibility is determined, and the notice given, at the start of the first instance of leave for each qualifying reason in the applicable 12-month period. All absences for the same reason are treated as a single leave, and eligibility for that reason does not change during the period. If the employee later needs leave for a different qualifying reason in the same 12-month period and eligibility status has not changed, no new eligibility notice is required. If status has changed, you must tell the employee within five business days.

Form. The eligibility notice may be oral or written. Give it in writing anyway. You must keep copies of written notices, and an oral notice leaves nothing to keep.

Notice 3: The Rights and Responsibilities Notice

This notice travels with the eligibility notice: it must be provided each time an eligibility notice is provided, and it must be written. If leave has already begun, the regulation says it should be mailed to the employee's address of record. Its job is to tell the employee the specific expectations and obligations that apply and the consequences of not meeting them.

It must include, as appropriate:

1. That the leave may be designated and counted against the annual FMLA entitlement, and which 12-month period you use.
2. Any requirement to furnish a certification (medical, serious injury or illness, or qualifying exigency) and the consequences of failing to do so.
3. The employee's right to substitute paid leave, whether you will require substitution, the conditions that apply, and the right to unpaid FMLA leave if those conditions are not met.
4. Any requirement to make health benefit premium payments, the arrangements for paying, and when coverage may lapse.
5. Key employee status, if it applies, and the possible denial of restoration.
6. The right to maintenance of benefits and to restoration to the same or an equivalent job.
7. Potential liability for employer-paid health premiums if the employee does not return to work after unpaid leave.

You may attach the certification form, which has its own clock: the employee generally has 15 calendar days to return it. See medical certification, recertification, and second opinions.

When the information changes

If something in the notice changes (for example, the first block of leave was paid and the next will be unpaid, so premium arrangements differ), you must give written notice of the change within five business days of the employee's first notice of need for leave after the change, referring back to the earlier notice.

Notice 4: The Designation Notice

The employer is responsible in all circumstances for designating leave as FMLA-qualifying and telling the employee. Once you have enough information to determine whether the leave qualifies (typically after receiving the certification), you have five business days, absent extenuating circumstances, to notify the employee in writing whether the leave will be designated and counted.

The essentials:

• One notice per reason per leave year. Only one designation notice is required for each qualifying reason per applicable 12-month period, whether the leave is continuous, intermittent, or reduced schedule.
• Say no in writing too. If the leave will not be designated, you must tell the employee. A simple written statement is enough.
• Paid leave. If you require substitution of paid leave, or will count paid leave under an existing plan as FMLA leave, say so at designation.
• Fitness for duty. If you will require a fitness-for-duty certification before restoration, the designation notice is where that requirement must be communicated, along with a list of essential functions if the certification must address them.
• Amount of leave. State the hours, days, or weeks that will be counted if known. If not (as with unforeseeable intermittent leave), you must provide the amount counted on the employee's request, no more often than once in a 30-day period in which leave was taken.
• Changes. If the designation information changes, written notice of the change is due within five business days of the employee's next notice of need for leave.

The deadlines, retroactive designation, and recurring mistakes are covered in depth in FMLA designation notice deadlines and common errors.

What Happens When a Notice Is Late or Missing

The regulation is direct: failure to follow the notice requirements "may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights." An employer may be liable for compensation and benefits lost because of the violation, other actual monetary losses, and equitable relief such as reinstatement or promotion.

In practice the question is usually harm. The designation rule gives an example: an employee who used leave to care for a child, not knowing it was being counted, and who would have arranged other care to save leave for a spouse's later surgery, may be able to show injury from the late designation. An employee who could not have returned to work in any event may not. Retroactive designation is allowed with proper notice where the delay does not cause harm, or where employer and employee agree.

Do not treat "no harm" as a planning assumption; it is decided after the fact, often by a court. State family and medical leave laws may also impose their own notices and deadlines, so check each state where you have employees.

Building the Process

Most notice failures are process failures, not knowledge failures. The patterns in Common Pitfalls in FMLA Administration and Key Components of FMLA Administration repeat: a supervisor who did not report the absence, a packet sent on day nine, a designation that never went out.

A workable minimum:

1. One intake channel, and a rule that supervisors report any mention of a medical or family reason for absence to HR the same day.
2. A standard packet (eligibility, rights and responsibilities, certification form) that goes out together.
3. A log with four dates for every case: employer knowledge, packet sent, certification received, designation sent. Note that the employer's deadlines run in business days and the employee's certification deadline in calendar days.
4. Copies of every written notice kept for at least three years, as the recordkeeping rule requires. Notices may sit in the personnel file; certifications and other medical records must be kept in separate confidential files.

Our FMLA Compliance Checklist can serve as the skeleton. Notices get harder when the same absence is also a workers' compensation claim, an ADA accommodation request, or a state leave. Notice and documentation under overlapping laws are among the topics listed for the two-day Leave and Accommodation Management seminar, an advanced program for people who already know the individual statutes.

Frequently Asked Questions

The Bottom Line

The FMLA notice requirements come down to one standing duty and three five-business-day clocks: keep the general notice posted and distributed, send the eligibility and rights and responsibilities notices within five business days of learning about a possible qualifying leave, and designate in writing within five business days of having enough information. Put every notice in writing, log the dates, and keep copies for three years.

For the rest of the leave cycle, start with the FMLA Guide. If your cases routinely involve more than one law at a time, the Leave and Accommodation Management seminar covers how FMLA, ADA, PWFA, workers' compensation, and state requirements fit together.

This article is general education, not legal advice; take unusual facts to employment counsel.