The Federal Sector FMLA Blog

DOL Issues Temporary Mandatory FMLA Poster Addressing Military Family Leave Amendments

The U.S. Department of Labor (DOL) recently released a temporary FMLA poster addressing the recently enacted changes affecting leave for military families. It is meant as a temporary mandatory insert to be posted along side your current DOL FMLA poster.  In all likelihood, the DOL will not issue a final version of a combined FMLA poster at least until it publishes regulations to implement the military family leave amendments.

To obtain a copy of the new temporary FMLA poster, follow the attached link.  http://www.dol.gov/esa/whd/fmla/NDAAAmndmnts.pdf

All federal employers must post the DOL FMLA poster.  Title I of the FMLA defines the federal government at large as an employer for FMLA purposes.  All Title I employers must post the required FMLA poster whether they have eligible employees or not.  Federal employers must post the DOL FMLA poster even if all of your employees are in the civil service and, therefore, are covered by the OPM FMLA (Title II) regulations.  OPM does not have a similar posting requirement.   

Posting the DOL amended poster will likely cause confusion for federal employers whose work force is predominately civil service employees.  As amended, the poster inform employees of their right to military family leave.  The problem is that there are two forms of military family leave under Title I, only one of which applies to civil service employees.

Eligible federal employees covered by Titles I and II may take FMLA leave to care for a servicemenber who is recovering from a serious illness or injury sustained as a result of active military duty.  Non-civil service employees will soon enjoy the ability to take FMLA leave for a "qualifying exigency" related to a covered family members active military service.  Congress did not define "qualifying exigency," leaving it to the DOL (hence the wait). 

Civil service employees will not enjoy the right to take leave due to a "qualifying exigency" related to a family members active military service.  As such, the DOL requirement that all federal employers post the DOL notice will likely be confusing to many federal employees.

In light of the mixed FMLA coverages in the federal workforce, DOL should allow federal employers to add language to the FMLA notice clarifying that it applies only to non-civil service employees.  OPM should create an FMLA poster for civil service federal employees.

Posting Notice of FMLA Rights on Employer's Website Satisfied FMLA Posting Requirement

In a case of first impression, the First Circuit in Dube v. J.P. Morgan Investor Services, No. 05-2487, 2006 U.S. App. LEXIS 25567 (Oct. 13, 2006) found that the employer satisfied the requirement in 29 CFR 825.300(a) that it post notice of FMLA rights and obligations by posting its FMLA notice on the employer's intranet website.  The intranet website was accessible to all employees while they were at work.  The court rejected the employee's argument that intranet positing was insufficient because he did not have access to it from home during his leave period.  The court found that the employer was not required to "post the notice where it could be seen by employees at home; the regulation only requires that the notice be posted at the workplace, and Dube cites no authority to support his suggestion that this rule is different where the notice is posted electronically.

Comment: The decision sanctions the use of electronic posting in lieu of physical posting of the DOL FMLA Poster.  The decision applies to Title I of the FMLA.  The OPM regulations implementing Title II do not include a posting requirement per se, but merely require that employees be informed of their FMLA rights and obligations with the suggestion that this may be accomplished by affording employees access to the statue and regulations.  Presumably, this could be done electronically as well.  The CAA and the PEOAA do not have posting requirements.  The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, Puerto Rico, and the U.S. Virgin Islands.