In FMLA 2009-1-A (January 6, 2009) (the “New Opinion Letter”), the Department of Labor (the “DOL”) clarified its requirements for procedures by which employees may provide notice of their need for leave under the Family and Medical Leave Act (the “FMLA”). These requirements were previously discussed in Wage and Hour Opinion Letter FMLA-101 (January 15, 1999).
The New Opinion Letter indicates that, generally, an employee may take FMLA leave due to the birth or placement of a child, or for his or her own serious health condition or to care for a covered family member with a serious health condition. The employee must provide the employer with notice of the need for the leave at least 30 days before the leave is to begin, where possible. The DOL’s FMLA regulations, issued in 1995, required that when leave is foreseeable less than 30 days in advance, the employee’s notice must be provided “as soon as practicable,” which the regulations clarified as meaning that at least verbal notification must be given to the employer within one or two business days of when the need for leave becomes known to the employee. Opinion letter FMLA-101 interpreted this language to bar an employer’s attendance policy, which required employees taking intermittent FMLA leave to report within one hour after the start of their shift unless they were unable to report due to circumstances beyond their control, as being more stringent than the regulations allow. Concerns have been raised that FMLA-101 prevents an employer from applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employee provides notice of his or her need for the leave within two business days of the leave’s start, without regard to whether earlier notice was practicable.
However, the DOL revised its FMLA regulations, effective as of January 16, 2009. The revised regulations retain the rule that, when leave is foreseeable less than 30 days in advance, the employee’s notice to the employer of the need for the leave must be provided “as soon as practicable.” However, the “two business day” clarification was deleted, and was replaced by (1) a statement that it should be practicable for the employee to provide notice of the need for leave either on the day on which he or she first becomes aware of such need, or on the next business day and (2) an overriding rule by which practicability is ultimately determined by taking into account the employee’s particular facts and circumstances. When providing the notice, under the revised FMLA regulations, the employee must comply with the employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. Similar rules for employee notification apply under the revised FMLA regulation when the need for the leave is not foreseeable before the leave starts.
As to the use of the employer’s notice and procedural requirements for requesting leave, the Preamble to the revised FMLA regulations had noted that the DOL 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 DOL believes that employers should be able to enforce non-discriminatory call-in procedures, except where such procedures are more stringent than the timing for FMLA notice . Additionally, where unusual circumstances prevent an employee seeking FMLA leave from complying with the procedures, the employee will be entitled to FMLA leave so long as the employee complies with the procedures as soon as he or she can practicably do so.
The New Opinion Letter concludes that, if 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 (as to that employee). The DOL rescinds Wage and Hour Opinion Letter FMLA-101, to the extent that the letter has been interpreted to create a flat two business day rule. Thus, for example, assume that the employer policy requires an employee to call in one hour prior to his or her shift to report absences. If an employee is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his or her need for FMLA leave when returning to work on Thursday, the employer may deny FMLA leave for this absence (absent unusual circumstances).