The FMLA itself requires employees to provide “such notice as is practicable” when the need for leave is not foreseeable 30 days in advance. However, the 1995 regulations essentially interpreted “as soon as practicable” to mean within two business days. This interpretation was formalized in the 1999 Letter Opinion. The DOL noted that the FMLA regulations were substantially revised in November 2008 and became final on January 16, 2009 because the “one to two business days time frame set forth in the 1995 regulations had been misinterpreted as permitting employees to business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” In the Notice of Proposed Rulemaking, the DOL explained the proposed rule change because it “expected that it will be practicable for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leaving during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours.)” Thus, “absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes amore stringent timing requirement than the regulations provide) and failure to properly notify employers of absences may cause a delay or denial of FMLA protection.”
In particular, “[i]t 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. . . . In both situations, employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”
The Department recognizes that call-in 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 . . . . In that situation, the employer may not enforce the more stringent timing requirement of its internal policy. Additionally, where unusual circumstances prevent an employee seeking FMLA-protected leave from complying with the procedures, the employee will be entitled to FMLA-protected leave so long as the employee complies with the policy as soon as he or she can practicably do so.
Therefore, “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. . . . Thus, . . . [if] an employer policy require[es] employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence. “
Insomniacs can read the full opinion letter at http://www.dol.gov/esa/whd/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm.
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.
