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Attorneys

LAW ALERT: DOL Issues Opinion Letter Clarifying Employer’s Right To Enforce Call-In Policies

May 5, 2009

On January 6, 2009 the Department of Labor (DOL) issued Opinion Letter FMLA2009-1-A to respond to a request for clarification regarding employee notification procedures under the Family and Medical Leave Act (FMLA) as discussed in the DOL’s previous Wage and Hour Opinion Letter FMLA-101 (January 15, 1999). The DOL indicated that it was brought to its attention that some employers had interpreted Opinion Letter FMLA-101 to stand for the proposition that under the FMLA, employers were not permitted to apply their internal call-in policies or discipline employees under their no call/no show policies, provided the employees provide notice within two (2) business days that the leave was FMLA-qualifying, regardless of whether the employee could have practicably provided notice sooner.

The FMLA requires employees to provide notice of the need for leave due to the birth or placement of a child, or for their own serious health condition, or to care for a covered family member with a serious health condition, 30 days before the leave is to begin where possible. (See 29 U.S.C. § 2612(e).) Where it is not possible to provide 30 days notice of the need for such leave, employees must provide “such notice as is practicable.” (Id.)

On January 16, 2009, the DOL’s final updated FMLA regulations (Final Rule) went into effect. (73 Fed. Reg. 67934 (11/17/08).) In the Final Rule, the DOL adopted the proposed revisions regarding the timing of employee notice of the need for FMLA leave with some minor modifications. The DOL noted that the “one to two business days” time frame set forth in the 1995 regulations had been misinterpreted as permitting “employees two business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” (73 Fed. Reg. 68003.) In discussing the proposed changes to § 825.302, the DOL stressed that

“both current and proposed § 825.302(b) defined ‘as soon as practicable’ as ‘as soon as both possible and practical, taking into account all the facts and circumstances of the individual case.’ The deletion of the ‘two-day rule’ does not change the fact that whether notice is given as soon as practicable will be determined based upon the particular facts and circumstances of the employee’s situation.” (73 Fed. Reg. 68003.)

Thus, the final § 825.302(b) states that

“[w]hen an employee becomes aware of a need for FMLA leave less than 30 days in advance, 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.” (73 Fed. Reg. 68098.)

Also, the final § 825.303(a), which addresses the timing of notice for unforeseeable FMLA leave, similarly states that an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. Specifically, “[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” (73 Fed. Reg. 68099.) According to the DOL’s Opinion Letter FMLA2009-1-A, in both situations, employees must comply with their employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. (See 73 Fed. Reg. 68099 (setting forth § 825.302(d) (“Complying with employer policy”) of the Final Rule); 73 Fed. Reg. 68100 (setting forth section § 825.303(c) (“Complying with employer policy”) of the Final Rule).)

The Final Rule replaces the statement that employees will be expected to give notice to their employers “promptly” with the statement that “it generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” Therefore, according to the DOL, where 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. The DOL concluded that to the extent that Opinion Letter FMLA-101 has been interpreted to create a flat “two-day rule,” the Department is hereby rescinding it.

To clarify its interpretation of the Final Rule, the DOL applied it to the following example: if an employer has a policy requiring employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is the DOL’s opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence.

The DOL’s FMLA2009-1-1 Opinion Letter can be obtained at: www.dol.gov/esa/WHD/opinion/opinion.htm.

Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.