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.”
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.