Employers May Enforce Absence Notification Procedures Under New FMLA Regulations, According To U.S. Department Of Labor Opinion Letter

By Andy Volin

What happens when an employee who is going to be absent does not comply with the company's policy requiring employees to call in before their shift starts?  For employers covered by the Family Medical Leave Act ("FMLA"), this scenario has created problems in the past.  Often, employees who could have called in simply chose not to, and then when they returned to work, they provided information that the absence qualified under the FMLA.  This frustrated employers who wanted to know in advance whether someone would not show up to work as scheduled. 

According to a newly released opinion letter by the U.S. Department of Labor ("DOL"), the new FMLA regulations should permit employers to deny FMLA leave to employees who can provide advance notice as required for absences but chose not to do so. 

The new opinion letter, identified as FMLA2009-1-A, discusses how the January 2009 regulations differ from the previous regulations on this topic.  It also rescinds a prior opinion letter interpreting the earlier regulations, to the extent that the prior letter could be interpreted as permitting employees who choose not to comply with an absence notification rule to retroactively claim FMLA leave.

The new opinion letter identifies three types of timing for FMLA leave:  (1) leave that is foreseeable more than 30 days in advance; (2) leave that is foreseeable less than 30 days in advance, and (3) leave that is not foreseeable.  Previously, the DOL took the position that, if the leave was not foreseeable 30 days in advance, an employee was merely expected to inform the employer about the need for the leave within one or two business days, which often resulted in the situation described above.  Now, in all three situations, the DOL regulations and opinion letter provide that employees must comply with their employers' absence notification policies.  Thus, if an employer requires people to call in no later than an hour before their shift, and if the employee could have done so but did not, the employer is not required to treat the leave as qualifying under the FMLA.

While this is welcome news to employers, there are some caveats about this new rule, and employers should proceed slowly in resolving these type of attendance issues.  First, if circumstances prevented the employee from complying with the absence notification policy, then the employee's failure must be excused.  Second, under the new regulations, it is possible that an absence might not be protected at the time it occurs, but depending on later events (such as a visit to a health care provider weeks later), it could qualify for FMLA protection.  Third, the regulations mention that the failure to provide advance notice when it was possible to do so may result in a delay of FMLA protection, distinguished from the outright denial of FMLA leave as provided in the opinion letter.  When there is a conflict between a regulation and an agency opinion letter, the regulation controls.  For all these reasons, before acting, employers need to determine (a) why an employee did not provide notice as required, as well as (b) why the employee was absent.  The answers may compel an employer to wait several weeks to determine whether the absence should or should not be protected under the FMLA.

The DOL Opinion Letter can be found at:  http://www.dol.gov/esa/whd/opinion/FMLA/2009/2009_01_06_1A_FMLA.htm.

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© 2009 Sherman & Howard L.L.C.                                                       June 5, 2009