Good news: Feds reverse ruling on notice for FMLA leave
May 22, 2009 by Jim GiulianoPosted in: Employment law, FMLA, Leave, Special Report, policies
The U.S. Department of Labor, in a just-released opinion letter, essentially changed its stand on the issue of how much notice an employee is required to give when requesting leave under the Family and Medical Leave Act. That’s good news for employers.
Let’s start with DOL’s original ruling — in opinion letter FMLA-101 — back in 1999. It involves a ruling on what rules employers can enforce when an employee requests FMLA leave with less than 30 days’ notice because of circumstances beyond the employee’s control, such as sudden illness.
Specifically, the letter addresses the “two-day rule” stating that employees have up to two days after beginning leave to inform their employers that the absence is FMLA-qualified.
The 1999 letter set the standard for such situations when it noted that a company that tries to set up a more stringent policy is in violation of the law. In the 1999 case, an employer tried to institute a policy in which employees had to request FMLA leave within one hour after the beginning of the first shift they missed because of taking the leave, or else be penalized for an unauthorized absence.
In short, the DOL said, “No, you can’t force employees to report the leave less than two days after taking it.”
What’s changed
Jump ahead to this year — and a new opinion letter, FMLA2009-1-A — released in May. (The letter was dated Jan. ‘09, but not released then.)
It responds to a complaint 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.”
Translation: FMLA-101 in 1999 stated that employers couldn’t penalize employees who failed to follow usual company procedures for calling in an FMLA request if those usual procedures violated the two-day rule even though the employee knew about the the leave and was able to call it in prior to the two-day deadline.
DOL reexamined the ruling and reversed itself in this year’s opinion letter.
Here’s the example DOL used in explaining the change:
- Company policy requires employees to call in one hour before the start of a missed shift to request that the missed time be considered FMLA leave. Failure to call in, unless the employee is unable to do so, results in denial of the request for FMLA leave.
- Employee takes two consecutive days off without calling in.
- Employee comes in on the third day and essentially says, “Those two days I missed are FMLA leave. By notifying you today, I’m covered by the two-day rule, even though I could have followed company policy and called in an hour before my first missed day.”
- Employer denies FMLA request.
Under the new opinion letter, the employer is in the clear. The two-day rule doesn’t kick in because the employee reasonably could have followed the company’s stricter standard call-in procedure.
The new letter also notes that if you’re going to deny FMLA when employees don’t follow the tougher call-in policy:
- You’ll have to make sure the policy is applied across the board to all employees — no exceptions.
- It really has to be an established policy, meaning it must have been used and in force before the employee makes the request; in other words, you can’t create a policy for one employee or on the day the employee makes the request.
Note: Opinion letters do not carry the weight of law, but they do indicate how an agency might rule on similar cases.
Tags: department of labor, dol, Family and Medical Leave Act, FMLA, FMLA-101, FMLA2009-1-A, two-day rule
May 26th, 2009 at 8:27 am
Isn’t the burden on the employer to recognize that leave should be designated as FMLA? I know that the employee must provide the appropriate and necessary paperwork/information once the employer requests it, but the case above is confusing to me. In the DOL example, what if the employee did not realize they were eligible for FMLA leave and once HR gathered more information, the employer realized that the leave would be FMLA eligible? Since the employee failed to adhere to established company policy, regardless of FMLA, I’m guessing that would nullify the fact that the leave would have been covered under FMLA?
May 26th, 2009 at 9:37 am
They should have kept this opinion letter until someone with knowledge of FMLA read it.
Not a law just someone’s opinion who does not matter. I guess someone in the past administration had a liitle too much time on their hands and the present administration does not know the laws.
May 26th, 2009 at 10:28 am
I was also under the impression that the burden of FMLA originally rests with the employer. As a matter of fact, we were always told that if an employee tells their supervisor, it is the same as telling HR even if the supervisor fails to tell HR right away – that is why is would be ESSENTIAL in making sure that all managers/supervisors understood what FMLA is and when it should be offered, etc. Pretty much, I was always told that the employee did not have much burden until AFTER the original FMLA paperwork was done and given to them….. Can anyone clarify this?
May 26th, 2009 at 12:28 pm
In my experience, the employer has always had the burden of determining whether or not the leave qualifies for FMLA. Even with the same policy of calling in before a scheduled shift, if the person advises within 2 days that the leave is FMLA, chances are that the company is not going to be taking corrective action against the employee during his/her absence, but rather upon return. Besides, FMLA can be approved back-dating it to the first day of the absence, if medical documentation exists to substantiate the full length of such absence. If no documentation is provided to satisfy the requirement, then corrective action may be taken at that time.
May 26th, 2009 at 12:36 pm
The difference here is whether the ee used the co’s call in procedure in the first place–as long as it was evenly applied and made good business sense. From there, you then look at whether it was a qualifying leave. But, the original interpretation, er’s were looking at it thinking–if they flew the FMLA flag–then they could call in whenever they darn well wished and the er couldn’t do anything about it–THAT was too strict and not with the intent of the law when loooking at unforeseen health issues (car accident vs. delivery date of a child).
Yes, the er still has the option to decide whether something is covered under FMLA or not, but now we have more flexibility in addressing failure to follow call off procedures. I would never deny someone FMLA leave because they didn’t tell me 1 hr before their shift–usually you don’t have doc notes that quickly–but within 2 days you should have sufficient info to determine if the leave qualifies or not—independent of the time they called in before their shift.
May 26th, 2009 at 1:59 pm
I see two problems here. First, the opinions do NOT carry the weight of law. Its almost like an IRS private letter ruling, it only tells how an agency thinks. Secondly, regardless of the stature of the opinion, notification of the “two hour” rule is not realistic in all circumstances. What happens if someone is in the ER? Are they supposed to tell the doctor to stop working on them so they can call in sick? This should be against public policy; and this is thinking from the employERs side as well.
May 26th, 2009 at 2:28 pm
Here’s an example when this is frustrating to an employer. I had an employee on intermittent leave (reduced schedule). He could only work 6 hours per day, while his co-workers worked 10. We counted on his 6 hours per day for production purposes. He started not showing up for work and not calling – at LEAST once a week, if not twice. We have a stict no-call no-show policy. It’s an automatic warning, or next step in progressive discipline. He would come in the next day, and say he was out due to his condition, even though he could have reasonably reported his absence within our call-in procedures. This was a GREAT source of frustration among his co-workers – ergo affecting the rest of my workforce negatively. Under the 1999 opinion letter, I could not discipline him for not following call-in procedure, because he notified us within 2 days that his leave was due to his FMLA qualified condition. I know, because I researched it at the time. Under this opinion letter, I could have held this employee to the same standards as everyone else. As it was, all I could do was let him exhaust his FMLA and then terminate him. In the meantime, we could not count on this person, it affected productivity and his unreliability had a significant impact on production. This is not a huge deal to employers who have primarily white collar desk employees – but for those of us in manufacturing, this is a very welcomed opinion letter.
May 26th, 2009 at 2:42 pm
Wouldn’t this be helpful to the employer for those employees who are currently taking intermittent FMLA. Sometimes this intermittent FMLA employee is the worst abuser of giving a proper notice. In the case of an employee who wasn’t aware that their absence qualified for FMLA, of course it is HR’s job to distinguish and start the process.
May 28th, 2009 at 3:29 pm
Hmmm – I think you are exactly right. You took the words out of my mouth!
May 29th, 2009 at 8:36 am
My ex-employer had a company policy in place that required employees to re-certify for FMLA in the event they changed hours or number of days designated as FMLA, if different from the ones provided by their health care providers at the time of submitting documentation for first approval. While there is no perfect way of doing it, this worked very well and employees who seemed to abuse the system, would think twice before changing times and days a second time around.