The 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.

The one-page poster provides general information regarding the availability of (1) up to 26 weeks of FMLA leave to care for a spouse, son, daughter, parent, or next of kin servicemenber who suffered a serious illness or injury in military combat; and (2) up to 12 weeks of FMLA leave due to a "qualifying exigency" related to active military duty in support of a contingency operation (e.g., Afghanistan, Iraq). 

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

Comment: DOL has not issued regulations implementing the newly added military family leave provisions of the FMLA. The regulations should be out in the next months. 

Employer Is Not Required to Inform Employee of Location of FMLA Poster

An employer is not required to inform an employee of the existence or whereabouts of the FMLA poster.  The FMLA requires that an employer conspicuously post notice of employee FMLA rights and responsibilities.  As a practical matter, if the FMLA notice is hung in a conspicuous location, it provides the requisite notice to employees.  Barthalow v. David H. Martin Excavating, Inc., No. 1:05-CV-2593, 2007 U.S. Dist. LEXIS 55003, at *16 (M.D.Pa. July 30, 2007). 

Comment:  The court found that the poster was hung in a conspicuous place.  The poster was hung in a garage/maintenance area that was accessible by all employees and open during the employer's regular business hours.  The employee was a laborer and the employee was an excavating company.  Note that the fact that the employee did not see the poster was not material to the courts determination that the employee was on notice of his right to request FMLA leave because the notice was conspicuously posted, even though the employee claimed that he did not actually see the poster.  The employee had argued that he should be excused from requesting FMLA leave because he was unaware of his FMLA rights. For the reasons stated above, the court disagreed. 

Unless it makes sense for your to post notice in a maintenance garage because of the nature of your workforce, I generally would not advice an employer to put the FMLA poster in a maintenance garage. Conspicuous posting of the notice where application are accepted and in or adjacent to employee break rooms is generally a better idea.      

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 (1st Cir. 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.