Opinion Letter Clarifies When Employees Must Give Notice of Unforeseen FMLA Leave

One of the most vexing problems for employers under the Family Medical Leave Act is the employee who fails to show up for work, does not call in ahead of time, and later claims that he or she needed an "FMLA day." It has long been the rule under the Department of Labor's regulations that an employee must give an employer notice of unforeseen FMLA leave "as soon as practicable." However, the old rules, in effect from 1995 until January of this year, defined "as soon as practicable" to mean "within one to two business days" after learning of the need for leave. In a 1999 opinion letter interpreting the old regulations, the Department stated that this rule prohibited employers from enforcing a requirement that employees report in within one hour after the start of their shift unless unable to do so, because that requirement was more stringent than the "one to two-day" notice requirement under the old rules.

In the new opinion letter (available on the DOL's Web site), the DOL rejects this position and clarifies that the "one to two-day" time frame referenced in the old regulations was intended as an "illustrative outer limit," not as a mandate that employers allow employees at least two days to give notice of the need for FMLA leave. Rather, the rule is (and according to the new letter, has always been) that employees must provide notice of the need for FMLA leave "as soon as practicable." The new opinion letter and the updated regulations also clarify that an employer may require employees to follow its "usual and customary" notice requirements before taking leave under the FMLA, such as a requirement that employees call in within a certain period of time before the start of their shift.

Under the revised rules, employers must still take account of the employee's circumstances and allow exceptions for cases when it would not be reasonable to expect an employee to call in, such as when an employee is incapacitated or attending to a family member who needs emergency medical care. Further, employers may not impose more stringent notification requirements for FMLA-covered leave than is required for similar non-FMLA absences.

Employers who have not already updated their FMLA and absence reporting policies and procedures to comply with and take advantage of the additional flexibility provided by the new rules should do so as soon as possible. For further information on the new FMLA rules, visit our FMLA Web site at www.FMLAregs.com, or contact Jeff Nowak or Bill Pokorny, or your regular Franczek Radelet attorney.