Publications

Notice Requirements

  1. Is the employer required to tell me what its FMLA policies are?16

    Yes. Employers must take the following steps to provide information to employees about FMLA:

    • Post and keep posted a notice of the FMLA requirements in places where employees can readily see it. The notice also must provide information concerning procedures for filing complaints with the Wage and Hour Division of the U.S. Department of Labor.
    • Include information about employee rights and obligations under FMLA in employee handbooks or other written material, including collective bargaining agreements. If handbooks or other written material do not exist, the employer must provide general guidance about employee rights and obligations under FMLA whenever an employee requests leave.

  2. Do I have to give notice to the employer before I take leave?17

    If the need for leave is foreseeable, the law requires 30 days' notice. If the need for leave is not foreseeable 30 days in advance, you should give whatever notice is possible, ordinarily within one or two business days of when you learn of the need for leave. You should give at least a verbal notice sufficient to make the employer aware that you need FMLA-qualifying leave.18

    If an employee uses paid leave under circumstances that qualify for FMLA leave, that employee is only required to comply with the notice requirement for use of paid leave, unless the FMLA notice requirement is shorter and then the employee can comply with that notice.19 AFSCME councils and locals may negotiate less stringent notice or certification requirements for paid leave than those under FMLA.

  3. How will I know whether the leave has been approved?20

    The employer must provide you with a written notice designating the leave as FMLA leave and detailing specific expectations and obligations of an employee who is exercising his/her FMLA entitlements. (See Appendix C for the kinds of information included in the notice.) This employer notice should be provided to you within one or two business days after receiving your notice of need for leave.21

  4. If the employer fails to tell me that the leave qualifies for FMLA leave, can the employer still count the time I've already taken off retroactively?22

    Yes. In Ragsdale et al. v. Wolverine World Wide Inc., the U.S. Supreme Court struck down a DOL regulation that prohibited an employer who failed to properly designate a paid or unpaid leave as FMLA leave from counting leave retroactively. The DOL regulation in question in the Ragsdale case charged the employer with the responsibility to designate leave, paid or unpaid, as FMLA-qualifying and to give notice of the designation to the employee.23 If an employee took paid or unpaid leave and the employer did not designate the leave as FMLA leave, the leave would not have counted against an employee's FMLA entitlement.24

    Employers still have an obligation to notify employees that their leave is being designated FMLA leave, but Ragsdale invalidated the penalty or enforcement component of the regulation. The DOL is considering how to rewrite the regulation and has asked AFSCME, along with other labor unions and employers, for suggestions. The major concern is that a new regulation will shift the burden of notification from employers to employees. Without an enforcement mechanism, employers will be free to act without penalty, rendering the regulation ineffective.

    The decision highlights the increasing importance of negotiating FMLA provisions in collective bargaining agreements and educating members about their FMLA rights. (See the "Bargaining for FMLA" section on Page 15.)

    Can my employer make inquiries about my leave during my absence?25

    Yes, but only to you. Your employer may ask you questions to confirm whether the leave needed or being taken qualifies for FMLA purposes. Also, if the employer wishes to get another opinion, you may be required to obtain additional medical certification at the employer's expense. The employer may have a health care provider representing the employer contact your health care provider, with your permission, to clarify information in the medical certification or to confirm that it was provided by the health care provider. The inquiry may not seek additional information regarding your health condition or that of a family member.

  5. My employer has a policy that anyone who is on FMLA leave must check in every four weeks. Is this legal?26

    Yes. Your employer may require you to report periodically on your status and intent to return to work. However, your employer may not do this in a discriminatory way — for example, by requiring only women who are on leave following childbirth to check in, based on the employer's belief that women will probably change their minds about returning to work. Also, your employer may require a medical recertification during a period of FMLA leave, but not more often than every 30 days.

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