Regular FMLA notices not required for EFMLA, but useful anyway

Covered employers providing emergency/expanded family and medical leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA) aren’t required to provide the Notice of Eligibility and Rights & Responsibilities or the Designation Notice that are required under the traditional Family and Medical Leave Act (FMLA), but we suggest FMLA-covered employers do so anyway, with modifications. As we previously reported, the FFCRA applies to employers with fewer than 500 employees. An eligible worker is entitled to up to 12 weeks of EFMLA (2 weeks unpaid, followed by 10 weeks paid at 2/3 the regular rate of pay) to care for their child whose school or childcare provider is closed or unavailable for COVID-19 related reasons. When the U.S. Department of Labor (DOL) issued a temporary final rule clarifying paid leave under the FFCRA, including EFMLA, it stated that it wouldn’t require employers to provide “notices of eligibility, rights and responsibilities, or written designations that leave use counts against employees’ FMLA leave allowances.” The DOL didn’t want to overburden non-FMLA-covered employers (those with fewer than 50 employees) that were already dealing with “interruptions to normal business operations from emergency conditions.” Even though the DOL granted the free pass on EFMLA notice requirements out of concern for businesses with fewer than 50 employees, it applies to all employers covered by the FFCRA.

Tips For Employers: If you have fewer than 50 employees and therefore aren’t covered by the FMLA, don’t worry about the Notice of Eligibility and Rights & Responsibilities or Designation Notice referenced above. You just have to provide the FFCRA poster. We recommend using Vigilant’s Model Form, Families First Coronavirus Response Act Leave Request Form, to capture employees’ leave requests. Also check out our COVID-19 resources page for more information about the FFCRA.

If you’re already covered under the traditional FMLA, you should consider voluntarily providing the Notice of Eligibility and Rights & Responsibilities and the Designation Notice for EFMLA. You’re still required to provide those notices to workers taking leave for traditional FMLA-qualifying reasons (such as caring for oneself or a covered family member because of a serious health condition). Since that traditional FMLA leave and the new EFMLA leave draw down the same 12-week leave bank, providing the same notices for either leave will create a clear, written record for you and your workers of the types and the amount of FMLA leave taken. In the event of any disputes later, you’ll be glad you kept a written record. You can keep the forms you’re already using to provide the notices; just manually update them with the one reason for taking EFMLA as necessary, or add a short cover note. If you have questions about the FFCRA, traditional FMLA, or how the two intersect, contact your Vigilant Law Group employment attorney.