One of the underappreciated benefits for employers in the recent amendments to the FMLA regulations announced by the Department of Labor (DOL) effective January 2009 was clarification of an employee’s obligation to comply with the employer’s procedural requirements for requesting leave. This employee obligation was further strengthened this month.
In Opinion Letter FMLA 2009-1-A, released on May 5, 2009, the DOL responded to an employer inquiry challenging the prior regulations and an earlier Opinion Letter, FMLA-101 (dated January 15, 1999). Those earlier authorities had been widely interpreted as prohibiting employers from enforcing any internal call-in and no-call/no-show policies if employees eventually provided notice of the need for FMLA leave within two business days, regardless of whether the employees could have reasonably provided notice sooner.
In the new Opinion Letter, which applies equally to both foreseeable leave under 29 C.F.R. § 825.302 and to unforeseeable leave under 29 C.F.R. § 825.303, the DOL expressly rescinds FMLA-101, meaning employees are no longer automatically entitled to two business days before having to provide notice of their need for FMLA leave. Instead, the new Opinion Letter confirms that under the amended regulations:
[W]here 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.
Consequently, in the absence of unusual circumstances, if an employee fails to comply with the employer’s usual and customary procedures for reporting an absence, the employee is subject to whatever discipline the employer’s rules provide for such a failure even where the absence is otherwise protected by the FMLA, and the employer may delay FMLA coverage until the employee complies with the employer’s rules.
Although this is welcome news, employers should be mindful that, particularly with respect to unforeseeable leave, a court may view the individual facts and circumstances leniently in favor of the employee when determining what kind of notice was “practicable” for FMLA leave. Employers should make sure that their call-in procedures are realistic, reasonable and understandable for all employees.