This content was originally published in July 2009. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.
As employers begin to apply the new Family and Medical Leave Act (FMLA) regulations, a few questions have come up. In response to one of these questions regarding employee call-in notice procedures, the U.S. Department of Labor (DOL) issued its first formal opinion on the new FMLA rules. The DOL letter, dated January 6, 2009 (but not publicly issued by DOL until May), confirms the wide latitude employers have to establish employee notice requirements for FMLA leave.
The employer first contacted DOL, asking the agency for clarification as to whether employers were prohibited 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 employees provide notice within 2 business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner. The employer challenged this position, stating that to allow this “place[d] an untenable burden on employers who are attempting to reasonably schedule their workforce based on foreseeable availabilities of employees and to apply uniform rules on call in to all employees.”
DOL Reconsiders Old Opinion Letter
In fashioning its response, DOL looked back to a previous opinion letter in which it interpreted the FMLA’s regulations as a bar to an employer’s attendance policy that required employees taking intermittent FMLA leave to report within 1 hour after the start of their shift unless they were unable to report due to circumstances beyond their control (Opinion letter FMLA-101, 1/15/99). The 1999 opinion letter stated that “[t]he company’s attendance policy imposes more stringent notification requirements than those of FMLA and assigns points to an employee who fails to provide such ‘timely’ notice of the need for FMLA intermittent leave.”
In reconsidering the 1999 opinion letter, DOL looked at the proposed and final 2009 FMLA regulations, concluding that the “one to two business days” time frame set forth in the 1995 regulations had been misinterpreted as permitting “employees two 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.” Instead, as established by the 2009 final FMLA rules, “as soon as practicable” is defined as “as soon as both possible and practical, taking into account all the facts and circumstances of the individual case.”
New Rules Applied
For foreseeable leave, DOL relied on FMLA regulation Sec. 825.302(b), which provides that “… it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.”
For unforeseeable leave, DOL noted, “[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.” But, in both situations [foreseeable and unforeseeable leave], employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
DOL recognized that employers should be able to enforce nondiscriminatory call-in procedures, except where an employer’s call-in procedures are more stringent than the timing for FMLA notice. In that situation, DOL noted that 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 as long as the employee complies with the policy as soon as he or she can practicably do so.
1999 Letter Rescinded
In its conclusion, DOL reaffirmed the 2009 final rule’s provision that, 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. As a result, DOL rescinded the 1999 opinion letter “to the degree that the [letter] has been interpreted to create a flat ‘2-day rule.'”