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DOL Provides Guidance on Employee Notice for FMLA Leave

May 23, 2009

The Department of Labor recently released an Opinion Letter regarding how much advance notice an employee must provide for FMLA leave when 30 days notice is not practicable. The Opinion Letter clarified that employers may enforce internal call-in policies so long as the procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave

While FMLA generally requires an employee to provide 30 days notice, when the leave is unforeseeable, FMLA only requires that the employee provide “such notice as is practicable.” In 1995, the DOL stated that “practicable” would, in most instances, mean one or two business days. Subsequent DOL interpretation of that regulation suggested that the two-day period, while ostensibly a guideline, was in fact a hard and fast rule. That is, the employee had up to two days to provide notice even if it would have been practicable to provide notice earlier. The updated FMLA regulations published in early 2009 provide that if 30 days notice is not practicable, notice must be given as soon as practicable and “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.” While the DOL still expects the employee will be able to provide notice of the need for leave either the same day or the next business day, in all cases, the determination of when an employee could practically provide notice must take into account the individual facts and circumstances.

The DOL issued the Opinion Letter in response to a “request for information” by an employer who was concerned about its ability to apply internal call-in policies or discipline employees for failing to call-in or show up for work where the employee provided notice within two business days of a FMLA qualifying absence but earlier notice was practicable. The DOL illustrated the key message with an example: If an employer has a policy requiring employees to call in one hour prior to their shift to report absences, and an employee is absent on Tuesday and Wednesday but does not call in on either day and instead provides FMLA notice when he returns to work on Thursday, the employer may deny FMLA leave for the absence so long as no unusual circumstances prevented the employee from complying with the employer’s usual call-in policy.

The Oregon Family Leave Act (OFLA) also requires employees to follow the employer’s known, reasonable and customary procedures for requesting any kinds of leave. OFLA provides that when an employee is unable to give the employer 30 days notice, the employee is encouraged to give the employer as much advance notice as is practicable. However, OFLA retains a 24-hour notice period if the need for leave is in an unanticipated or emergency situation. This notice may be given by another person on behalf of the employee. The employer may then require written notice by the employee within three days of the employee’s return to work.

Always remember that employees covered by both FMLA and OFLA are entitled to the more generous protection when the laws differ.
Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements. If this has been forwarded to you, and you would like to begin receiving Electronic Alerts directly, please call Traci Hopfe at 503-276-2115 or email [email protected] Copyright © 2009 by Barran Liebman LLP

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