Last week we discussed the notice obligations imposed on employers by the new FMLA regulations. This week we're going to review one of the more employer-friendly sets of changes brought about by the regs: employee notice requirements; i.e., how much notice does an employee have to provide, and what do they need to say?
Foreseeable Leave
Section 825.302 addresses foreseeable leave, and retains the traditional 30-day notice requirement. If it is not possible to provide 30-days' notice, notice must be provided as soon as practicable. Again, this part isn't really new. However, the regulations now go further and state that it is usually "practicable" to provide notice the same day or the next business day, absent extenuating circumstances. This new language should be helpful for employers who have employees with last-minute notice problems. For qualifying exigency leave, there is no 30-day requirement, but an employee still must provide notice as soon as practicable. The regulations also provide that employees must comply with the employer’s usual notice and procedural requirements for leave. The language that prohibited an employer from delaying or denying leave if the employee did not follow such procedures has been deleted.
Employees still have no obligation to specifically mention the need for FMLA leave; the regulations now provide additional guidance as to what constitutes “sufficient information.” The Department of Labor (“DOL”) clarified that the specific information mentioned need not be provided in each case, and that the information required depends on the situation. However, some examples are: information that a condition renders the employee unable to perform the functions of the job; or if the leave is for a family member that the condition renders the family unable to perform his/her daily activities; that the employee is pregnant or has been hospitalized overnight; the anticipated duration of the absence; or that the employee is under the continuing care of a health care provider.
If the leave is for a previously-certified FMLA-qualifying condition, the employee must specifically reference the particular reason or the need for FMLA leave.
The new regulations also add references to explain the notice requirements for qualifying exigency leave and military caregiver leave. Interestingly, if an employee fails to give 30 days' notice and the leave was forseeable, the employer can require the employee to provide an explanation as to why 30 days' notice was not provided.
Unforeseeable Leave
Employees are required to provide notice of unforeseeable leave as soon as practicable under the facts and circumstances of the case. It is generally practicable for the employee to provide notice within the time prescribed by the employer’s usual and customary notice and procedural requirements that are applicable to such leave. Thus employers can apply procedural requirements such as "you must speak to a supervisor and not just a co-worker when you call in" as long as those rules apply equally to non-FMLA leaves.
As with foreseeable leave, the new regulations retain the standard that the employee need not specifically mention the FMLA when requesting leave but now provide additional information regarding what type of information is “sufficient.” The regulations also (finally) explicitly state that calling in “sick” is insufficient to trigger the employer’s notice requirements. An employee must also respond to questions from the employer designed to determine whether the leave is FMLA-qualifying.
The employee is required to specifically mention the condition or the FMLA if the leave is for a previously-certified FMLA-qualifying reason.
Consequences
The new regulations also provide guidance clarifying the consequences of an employee’s failure to provide timely notice of the need for leave. The old regulations only explained the consequences for a delay where the need for leave was foreseeable and the employee could have provided 30-days notice. Now the regulations also address situations where the need for leave is foreseeable less than 30-days in advance, and where the leave is unforeseeable. The new regulations also provide examples of what it means to delay leave.
Overall, the new employee notice requirements are generally employer-friendly. The language of the regulations makes it clear that it is the employee's obligation, at all times, to provide enough information for the employer to determine that it is an FMLA leave request. For employers who have been dealing with employee abuse in this area, these changes should prove helpful.