Employers: Display updated FMLA poster

 

MAY 2016

DOL releases updated FMLA poster: Must you use the new version?

The U.S. Department of Labor just issued a new version of the FMLA poster that covered employers are required to hang in their workplaces. You can download the poster here.

The big question: If you already have an FMLA poster in your workplace, must you display this new version? No, you don’t have to use this new version as long as you’re currently displaying a poster that includes the same information (which was most recently updated in 2013, as noted below).

This new 2016 update contains basically the same information as the 2013 poster, but the new poster is organized in a more reader-friendly format. It also adds more color to the poster and now highlights the DOL’s contact information to file a complaint. However, the DOL stated, “The February 2013 version of the FMLA poster is still good and can be used to fulfill the posting requirement.”

At the same time it issued the new poster, the DOL published the Employer’s Guide to The FMLA. The guide follows the DOL’s previously released edition of the booklet, which helps new and experienced HR professionals navigate the complex law. It contains several flow charts that help illustrate the problems employers may encounter when handling FMLA requests.

FMLA COMPLIANCE may be one of the trickiest parts of an HR pro’s job, but the law’s notification requirements are easy to deal with. You must:

• Conspicuously display in your workplace the DOL’s latest official FMLA poster and general notice, detailing employee rights and employer responsibilities.
• Distribute the general notice to all employees in your company handbook (if you have one) or provide a copy to each new employee upon hire. Electronic distribution is permitted. You should have your own company FMLA policy outlining leave usage and procedures.
• When an employee requests FMLA leave, or you become aware of the person’s need for leave, notify the employee of his or her eligibility for FMLA leave within five business days, absent extenuating circumstances. If the employee is ineligible, the notice must state at least one reason for the person’s ineligibility.

If the employee requires further FMLA leave within the same eligibility period and his or her status has not changed, no additional eligibility notice is required.

Note: An employer may be liable for any harm that an employee suffers because the employer did not follow the FMLA notice requirements. In 2008, the DOL eliminated a prior rule that granted additional leave as a penalty.

 

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FEBRUARY 2013

It’s time to replace that FMLA poster in your break room … again.

By March 8, 2013, employers covered under the FMLA (those with 50 or more employees) must display the new version of the Employee Rights and Responsibilities Under the Family and Medical Leave Act poster. 

This most recent version of the one-page poster includes new changes to FMLA rights relating to military family leave and military caregiver leave. Plus, it includes technical changes for FMLA eligibility for airline flight crews and flight attendants.

Those changes were originally approved by Congress in 2008 and 2009. On Feb. 5, 2013—which was also the 20th anniversary of the signing of the FMLA law in 1993—the U.S. Department of Labor issued final regulations that implement and clarify the military and flight-crew changes. At the same time, the DOL published an updated version of the employer poster, a fact sheet on the amendments and a new Employee’s Guide to Military Family Leave under FMLA.

The poster. All employers covered under the FMLA are required to display this poster, which explains employees’ rights under the law and tells workers how to file a complaint. You must display the poster, the DOL says, in “a conspicuous place where employees and applicants for employment can see it.” If your organization is covered by the law, a poster must be displayed at all locations, even if there are no eligible employees.

Plenty of HR and poster vendors will be happy to sell you copies of this new version. But be aware: You don’t need to spend a penny to comply with the law’s new posting requirement. You can download a free copy of the official approved version at the DOL’s website: www.dol.gov/whd/regs/compliance/posters/fmla.htm.

The correct version of the updated poster includes this notation in the bottom right corner: “WHD Publication 1420, Revised February 2013.”

Also, you don’t need to wait to March 8 to display the new poster. The DOL says you can start using the new poster immediately, or you may still use the old FMLA poster through March 7, 2013.

Military Leave. The military-related FMLA changes finalized in these regulations and new poster would provide families of eligible veterans with the same job-protected FMLA leave now available to families of military service members. It would also allow more military families to take leave for activities that arise when a service member is deployed. Specifically, the FMLA regulations say:

• Eligible employees with a spouse, son, daughter or parent on active duty (or call to active duty status) in the National Guard or Reserves in support of a military operation can use their 12-week FMLA entitlement to attend certain military events, arrange for alternative childcare, address certain financial and legal arrangements, attend certain counseling sessions, and attend post-deployment reintegration briefings.
• Eligible employees can take up to 26 weeks of leave to care for someone who is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the servicemember medically unfit to perform his or her duties.

The final regulations on military leave did include a handful of minor differences from the 2008 regulations. The DOL issued a side-by-side comparison of the changes. Plus, the agency issued three new forms that employers can use to certify employees’ use of military-related leave:

• WH-384 – Certification of Qualifying Exigency For Military Family Leave
  
• WH-385 – Certification for Serious Injury or Illness of Current Servicemember — for Military Family Leave
  
• WH-385-V – Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave
  

One final thought ... If employers were looking for any good news in this DOL announcement, they didn’t find it.

The DOL took the opportunity of the FMLA’s 20th birthday to tout the law’s remarkable success, saying employers’ administration of the law “has achieved a level of stability.” But many employers would argue differently.

“Compliance with the regulatory scheme of the FMLA remains a challenge for employers,” says Al Robinson, a former administrator of the DOL’s Wage & Hour division, now an attorney with Ogletree Deakins in Washington, D.C. “This final rule does little to address the administrative burdens caused by the FMLA regulations.”