From PostalReporter reader

The Dept of Labor has issued a new FMLA Opinion Letter titled, “Employee Notice and Call-In Procedures,” that rescinds previous policy.  Basically, it says that the employer’s usual and customary notice requirements for leave can be enforced in most cases of FMLA absences.  The burden of proof that it wasn’t “practicable” to give sufficient advance notice will be borne by the employee.  The former “two-day rule” has been rescinded.  I predict many employers will seize on this technicality to deny their workers FMLA leave.

Don Cheney
Auburn, WA
FMLA2009-1-A  Employee Notice and Call-In Procedures
http://www.dol.gov/esa/WHD/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm

January 6, 2009

This is in response to your request for clarification of employee notification procedures under the Family and Medical Leave Act (FMLA) as discussed in Wage and Hour Opinion Letter FMLA-101 (January 15, 1999). You state 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, regardless of whether they could have practicably provided notice sooner. You believe that this interpretation of the FMLA employee notification requirements “places an untenable burden on employers who are attempting to reasonably schedule their workforce based on foreseeable availabilities of employees and to apply uniform rules on call in to all employees.”

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Accordingly, as stated in the final rule, 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. To the degree that Wage and Hour Opinion Letter FMLA-101 has been interpreted to create a flat “two-day rule,” the Department is hereby rescinding it. Thus, in the example you cite in your letter of an employer 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 our 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.

Sincerely,

Alexander Passantino
Acting Administrator