Generally, the Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with up to 12 workweeks of unpaid leave for certain family and medical reasons, with continuation of group health insurance coverage for an employee under the same terms and conditions as if the employee had not taken leave. The law also provides certain family military leave entitlements. Employers generally are required to preserve the jobs of employees on FMLA leave and to restore those employees to their positions upon expiration of the FMLA leave.
Under FMLA regulation 29 C.F.R. §825.300, covered employers—i.e., those employers with 50 or more employees within 75 miles of an employer’s worksite—must post a copy of an FMLA “general notice” in each location where the employer has any employees (even if there are no FMLA-eligible employees at the location). The regulation goes on to provide that the notice must be posted (either physically or electronically) “prominently where it can be readily seen by employees and applicants for employment.” If a covered employer has any eligible employees at any location, it must also provide the general notice to each employee by including the general notice in employee handbooks or other written guidance concerning employee benefits or leave rights (if such written materials exist—otherwise, the employer may distribute a copy of the general notice either in print or electronically to each new employee upon hire).
For years, the U.S. Department of Labor (DOL) has offered on its website a poster that satisfied this requirement. In April 2016, the DOL quietly issued a new “Employee Rights Under the Family and Medical Leave Act” poster. On its website, the DOL specifically states:
All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.
. . .
The February 2013 version of the FMLA poster is still good and can be used to fulfill the posting requirement.
The new poster does not include much in the way of new information. Rather, the new poster eliminates some information and instead presents certain other information in what can be described as a much more “reader friendly” format. Specifically, the new poster no longer refers to the “employee’s responsibilities” under the FMLA and instead focuses on employers’ responsibilities. The new poster also features more prominently than before the following language:
- Employees may file a complaint with the U.S. Department of Labor, Wage and Hour Division, or may bring a private lawsuit against an employer.
- The FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.
On the new poster, the DOL advertises its website and telephone numbers in a significantly more prominent manner than before. In a move consistent with the DOL’s higher profile in the last several years, it is clear from the DOL’s revised poster that the agency is attempting to make it easier and encourage employees to contact the DOL to complain about employers’ practices. In light of the changes to the poster, now is an excellent time to review your FMLA policies and procedures and to make sure your organization is using the proper FMLA forms.
Finally, for the time being and as noted above, the DOL states that the prior poster can still be used to fulfill the posting requirement. However, good luck finding the February 2013 poster on the DOL’s website as the DOL has replaced it with the new poster.