New FMLA Regulations Significantly Change Employee’s Notice Requirements; Calling in Sick and Ignoring Employer’s Policies No Longer Suffices.

As mentioned in the summaries from last week, the DOL issued new FMLA regulations last Monday which will become effective on January 16, 2009 and will require employers to modify their employment policies, practices employee handbooks. Employers should consult with an employment attorney to revise and/or review their FMLA policies and forms before the new FMLA rules become effective in January. In addition to the new rules mentioned at this site beginning at DOL issues Final FMLA Regulations on New Servicemember and Exigency Leaves and Revises Serious Health Condition Rules, the following rules were also revised:

27. §825.302: Employee Notice Requirements. This rule has also been reorganized and contains a few significant changes. As before, employees must give notice of a need for FMLA at least 30 days in advance or as soon as practicable. When the employee fails to do so, “the employee shall explain the reasons shy such notice was not practicable upon a request form the employer.” The new regulations gives examples of when 30 days’ advance notice may not be possible. Notice “as soon as practicable” should typically be given on the same or next business day. The former two-day notice requirement has been deleted. As before, employees need only give verbal notice of a need for FMLA leave (including the anticipated timing and duration) and, for first time FMLA requests, need not mention the FMLA. However, “[w]hen an employee seeks leave due to a FMLA-qualifying reason, for which the employer has previously provided FMLA-protected leave, the employee must specifically reference the qualifying reason for the leave or the need for FMLA leave.” Moreover, “[i]n all cases, the employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee and obtain the necessary details for the leave to be taken. An employee’s [f]ailure to respond to reasonable employer inquiries regarding the leave request may result in denial of FMLA protection if the employer is unable to determine whether the leave is FMLA-qualifying.”

“An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” This is a significant change from the current rule and notably would include requirements of written notice setting forth the reasons for the leave and the anticipated duration and to contact a specific person. “When an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied” (unless the employer’s policy requires notice to be given more than 30 days in advance or as soon as practicable). “The Department recognizes that callin procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. Such procedures frequently specify both when and to whom an employee is required to report an absence. The Department believes that employers should be able to enforce non-discriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice as set forth in § 825.302(a).”

28. §825.303 Employee notice of unforeseeable leave. The new rule is so substantially similar to the general rule (above) that I am a little surprised that a separate rule was deemed necessary. As a result, I will not repeat those changes here. As with the current rule, employees are expected to give notice as soon as practicable. However, it “generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” The former two-day standard has been deleted. As with the general rule (above), the employee need not mention the FMLA the first time leave is requested, but must do so going forward. “Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

29. §825.304: Employee failure to provide notice. The new rule reorganized and “clarified” the current requirements. For instance, FMLA leave may not be delayed or denied unless the employer has complied with the posting and handbook requirements (discussed yesterday). “If an employer does not waive the employee’s obligations under its internal leave rules and procedures for failure to follow its usual and customary notification rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with §825.303(a).”

I will continue to summarize additional significant changes in the new FMLA regulations throughout the week on this blog, including at New FMLA Regulations Change Process of Medical Certifications. Until then, eager beavers and insomniacs can read the 201 pages of single-spaced, 9-point font new rules and explanatory comment in full at http://edocket.access.gpo.gov/2008/pdf/E8-26577.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.