When the need for leave is foreseeable, the law requires that employees provide their employers with at least 30 days’ advance notice before FMLA is to begin. This requirement applies if the need for the leave is foreseeable based on an:
If 30 days’ notice is not practicable, (e.g., when an employee does not know when leave will begin, a change in circumstances, or a medical emergency), notice must be given as soon as practicable. “As soon as practicable” means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.
When an employee becomes aware of a need for FMLA leave less than 30 days in advance, FMLA’s regulations state 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 example, an employee’s health condition may require leave to commence earlier than anticipated before the birth of a child. Similarly, little opportunity for notice may be given before placement for adoption.
DOL provides the following example:
When Mandy goes to her Monday physical therapy appointment for her serious health condition, she finds out that the appointment she had previously scheduled for Thursday has been changed to Friday. Upon her return to work after the Monday appointment, Mandy informs her employer that she will no longer need leave on Thursday for physical therapy, but will need leave on Friday instead. Mandy has provided notice of her need for foreseeable leave as soon as practicable.
Special notice rule for qualifying exigencies. Notice for foreseeable leave due to a qualifying exigency must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable.
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Forseeable Leave. First and foremost, an employer must be able to show that an employee was given actual notice of the employee’s FMLA notice. If the employee was given notice of his or her responsibilities under FMLA, and still failed to give notice for foreseeable leave, the employer has two options:
Foreseeable leave—30 days. When the need for FMLA leave is foreseeable at least 30 days in advance, and an employee fails to give timely advance notice with no reasonable excuse, the employer may delay FMLA coverage until 30 days after the date the employee provides notice.
Note: The need for leave and the approximate date leave would be taken must have been clearly foreseeable to the employee 30 days in advance of the leave. For example, knowledge that an employee would receive a telephone call about the availability of a child for adoption at some unknown point in the future would not be sufficient to establish the leave was clearly foreseeable 30 days in advance.
Foreseeable leave—less than 30 days. When the need for FMLA leave is foreseeable fewer than 30 days in advance, and an employee fails to give notice as soon as practicable under the particular facts and circumstances, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case.
Example: If an employee reasonably should have given the employer 2 weeks’ notice but instead only provided 1 week’s notice, then the employer may delay FMLA-protected leave for 1 week. Thus, if the employer elects to delay FMLA coverage, and the employee nonetheless takes leave 1 week after providing the notice (i.e., a week before the 2-week notice period has been met), the leave will not be FMLA-protected.
The regulations provide that “practicable” means as soon as both possible and practical. Taking all the circumstances into consideration, the amount of notice may be different for each individual situation.
Example: If an employee’s child has a severe asthma attack, and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child’s asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler.
A change in circumstances might also qualify as a reason to provide less than 30 days’ notice. For example, a baby born prematurely or a child available for adoption earlier than anticipated may not be medical emergencies, but they certainly are valid reasons for shorter notice provided by the employee to the employer.
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