On May 5, 2009, the United States Department of Labor (“DOL”) published an advisory opinion letter addressing whether employers can enforce internal absence reporting procedures under the Family Medical Leave Act (“FMLA”). The employer seeking the opinion noted that:
Employers believe that opinion letter FMLA-101 prevents them 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 two business days that the leave was FMLA-qualifying…Under the FMLA, employees must provide notice of their need for leave “as soon as practicable” when the need for leave is not foreseeable 30 days in advance. The 1995 FMLA regulations defined “as soon as practicable” to mean “as soon as both possible and practicable, taking into account all of the facts and circumstances in the individual case.” Additionally, the 1995 FMLA regulations noted that as soon as practicable “ordinarily would mean…within one or two business days of when the need for leave becomes known to the employee.” Within opinion letter FMLA-101, the DOL concluded that an absence reporting policy requiring employees to report absences within one hour after the start of their shift violated the 1995 FMLA regulations. The DOL reasoned that the policy violated the 1995 FMLA regulations because the policy was more stringent than the 1995 FMLA regulation permitting employees to report absences within one to two business days of learning of the leave.
The current FMLA regulations became effective on January 16, 2009. The 2009 FMLA regulations include different language, noting 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.” Within the opinion letter published today, the DOL rescinded opinion letter FMLA-101 and advised that an employer’s notice requirements may be enforced if the notice requirements are consistent with what is practicable given the particular circumstances. Responding to the example given by the employer, the DOL concluded that if an employee is absent on Tuesday and Wednesday, but does not report his or her need for leave until Thursday, the employer may deny FMLA leave unless unusual circumstances are present.
As illustrated within the opinion letter published today, employer’s may discipline employees and deny FMLA leave when employees fail to provide notice consistent with employer absence reporting policies and those policies are consistent with the FMLA.
*Stephen S. Zashin and Patrick M. Watts, OSBA Certified Specialists in Labor and Employment Law, have extensive expertise in FMLA administration and litigation. If you have any questions regarding FMLA leave or whether your employment policies comply with the current FMLA regulations, contact Stephen at ssz@zrlaw.com or 216.696.4441.