According to the U.S. Department of Labor (DOL), an employer must determine, by the time the leave would start, whether the employee who made the request is eligible for FMLA leave — that is, whether she has worked for the employer for at least 1,250 hours in the past 12 months.

Once the employer has received notice from the employee requesting the leave, the DOL rules require that the employer advise the employee of his or her eligibility for FMLA leave within five business days, absent extenuating circumstances. Note that, prior to January of 2008, employers had only two days to respond to an employee’s FMLA request.

The eligibility notice must state whether the employee is eligible for FMLA leave. If the employee isn’t, the notice must state at least one reason why the employee is ineligible. A rights and responsibilities notice must be provided at the same time as an eligibility notice. This notice must detail the specific expectations and obligations imposed upon the employee and any consequences for failure to meet those expectations and obligations. The employer must also notify the employee whether the requested leave will be designated and counted as FMLA leave.

Impact of failing to meet notice rules. If an employer fails to follow the notice requirements, the employer may be liable for compensation and benefits lost by reason of the violation, for other actual monetary losses, and for equitable relief, including employment, reinstatement, promotion, or any other relief that is tailored to the harm suffered by the employee.

Source: 29 CFR §825.300.