When employees fail to follow regulatory guidelines for FMLA notifications, may the employer delay the leave? It’s a tricky question. Here are the answers:
Proper Notice Required
First of all, in order for the onset of an employee’s FMLA leave to be delayed due to lack of required notice, it must be clear that the employee had actual notice of the FMLA notice requirements.
This condition would be satisfied by the employer’s proper posting of the required notice at the worksite where the employee is employed and the employer’s provision of the required notice in either an employee handbook or employee distribution, as required by §825.300.
“Proper posting” means posting in conspicuous places where employees are employed, and where it can be readily seen by employees and applicants for employment. The poster text must be large enough so that it can be easily read and contain fully legible text.
The DOL’s Notice to Employees of Rights Under FMLA (WHD Publication 1420) satisfies this general notice requirement. (Covered employers must post this general notice even if no employees are eligible for FMLA leave.)
Foreseeable Leave—At Least 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. 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.
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Qualifying Exigency Leave Requirements Relaxed
Note that for “qualifying exigency” leave, the 30-day advance notice is relaxed. The regulations provide that notice for qualifying exigency leave must be provided as soon as practicable, regardless of how far in advance such leave is foreseeable.
Foreseeable Leave—Fewer 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.
For example, if an employee reasonably should have given the employer two weeks’ notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week.
If the employer does elect to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (and therefore a week before the two week notice period has been met) the leave will not be FMLA-protected.
Unforeseeable Leave
When the need for FMLA leave is unforeseeable and an employee fails to give notice in accordance with the regulation (§825.303), the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case.
For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer’s policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.
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Waiver of Notice
An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements.
If an employer does not waive the employee’s obligations under its internal leave rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with §825.303(a).
The rules are clear, but the situations are often sticky. The legal threats of retaliation, discrimination, and interfering with FMLA leave are hovering, and no managers should forget that failure to honor FMLA obligations could bring individual liability.
In view of this, it may be wise to contact an in-state employment attorney to review all of the facts of the case and make an appropriate legal determination regarding what action to take.
In tomorrow’s Advisor, a handy checklist for evaluating your FMLA exposure, plus an introduction to the problem-solving guide many call the “FMLA Bible.”