The Wage and Hour Division (WHD) of the Department of Labor (DOL) has issued an opinion letter (FMLA2009-1-A) clarifying that an employer’s internal notification policy regarding employee attendance can be enforced against an employee attempting to take leave under the Family and Medical Leave Act (FMLA) so long as compliance with the notice policy is practicable given the employee’s particular circumstances. In a previous opinion letter dated January 15, 1999 (FMLA-101) the DOL had concluded that employers’ call-in/no show policies and related disciplinary measures could not be applied so long as the employee provided notice within two business days that the leave was FMLA-related, regardless of whether such notice could have been provided sooner. To the extent that FMLA-101 created a blanket “two-day rule” for providing FMLA notice, the WHD is rescinding it.

The FMLA requires employees to provide, where possible, notice of the need for most types of FMLA leave 30 days before leave is to begin. If 30 days advance notice is not possible, employees are to provide “such notice as is practicable.” 29 U.S.C. § 2612(e). The DOL’s 1995 FMLA regulations had clarified that “such notice as is practicable” ordinarily means “at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.” Opinion letter FMLA-101 had applied this regulatory definition to a contemplated policy that would require employees taking intermittent FMLA leave to report their need for leave within one hour after the start of their shift unless circumstances beyond their control prevented such notice. In this opinion letter, the DOL concluded that the policy would violate the FMLA, because it imposed a more stringent notification policy than the “within one or two business days” described in the FMLA regulations. Many employers interpreted this opinion letter as prohibiting the application of any call-in policy that did not permit employees to wait up to two business days before providing FMLA notice.

The FMLA was amended for the first time in its 15-year history in January 2008. On November 17, 2008, the DOL published final revised regulations that implemented these statutory changes and addressed other interpretive issues. The DOL’s comments accompanying the new regulations, which became effective January 16, 2009, discuss FMLA-101, noting that the “one to two business days” time frame set forth in the 1995 regulations had been misinterpreted as permitting “employees two business days from learning of their need for leave to provide notice to their employers regardless of whether it would have been practicable to provide notice more quickly.” 73 Fed. Reg. 67,934, 68,003. The DOL recognized that certain employer attendance/call-in procedures “are critical to an employer’s ability to ensure appropriate staffing levels.” Id. at 68, 006. To that end, the newly-released opinion letter echoes the final rule’s statement that “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.”