The Family and Medical Leave Act (“FMLA”) requires an employee seeking FMLA leave for an unforeseeable event to give the employer “such notice as is practicable.” In the 1990s, the Department of Labor’s (“DOL”) guidance on this notice standard gave rise to an interpretation allowing an employee to give notice of the need for FMLA leave anytime within two business days after the employee learned of the need for leave. In an Opinion Letter released on May 5, 2009, however, the DOL rejected the notion that an employee always has two business days after learning of the need for unforeseeable FMLA leave to request the leave in favor of a more practical rule that will allow employers to enforce their general call-in procedures in most instances.

The Original Two-Day Notice Rule

The FMLA requires employees to provide their employers with 30 days’ notice when the need for FMLA leave is foreseeable, and when the need for leave is not foreseeable that far in advance, employees must “provide such notice as is practicable.” Interpreting this notice standard in its 1995 FMLA regulations, the DOL stated it would “ordinarily” be practicable to notify the employer “within one or two business days of when the need for leave becomes known to the employee.”

Citing that regulation, a 1999 DOL Opinion Letter rejected as unlawful a proposed policy that would require employees taking intermittent FMLA leave to report an FMLA absence within one hour after the start of their shifts unless they were unable to report due to circumstances beyond their control. The DOL concluded that the proposed policy created a more stringent notice window than that “required” by the FMLA - “i.e., within two business days of learning of the need for leave.” This Opinion Letter therefore suggested that the FMLA established a flat two-day notice rule for unforeseeable FMLA leaves, and until recently, that rule was generally followed in interpreting the FMLA.

DOL’s Retraction of the Two-Day Rule

In late 2008, the DOL issued revised FMLA regulations that dropped the reference to a period of one or two business days for providing notice of unforeseeable FMLA leave in favor of a more flexible approach recognizing that what constitutes adequate notice of an unforeseeable need for leave should be determined under the particular facts of the situation. Consistent with this approach, the DOL Opinion Letter on notice of unforeseeable leave released on May 5, 2009, rescinded the 1999 Opinion Letter on that subject “to the degree [it] has been interpreted to create a flat ‘two-day rule,’” and instead stressed that what is “practicable” notice depends on individual facts and circumstances. Endorsing the type of call-in policy the DOL rejected in 1999, the 2009 Opinion Letter approved of an employer’s policy that requires employees to call in one hour prior to their shift to report absences - unless unusual circumstances prevent an employee from complying with this policy. Thus, the 2009 Opinion Letter stated that when an employer has such a call-in policy, an employee who is absent on Tuesday and Wednesday but does not call in and does not give notice that the absence was for an FMLA-qualifying reason until he returns to work on Thursday can be denied FMLA leave for the absence unless unusual circumstances prevented the employee from complying with the call-in policy.

Practical Implications

Under the previous two-day rule, employees were essentially given free rein to flout their employers’ call-in policies and leave-request procedures whenever an unforeseeable absence was due to an FMLA-covered reason. As long as employees reported that an absence was for an FMLA-covered reason within two business days of learning of the need for the absence, they were effectively shielded from discipline or discharge for failing to report the absence more promptly. DOL’s unambiguous rejection of the two-day rule aligns the FMLA’s notice requirement with an employer’s practical need to schedule its workforce. Under the new interpretation of the FMLA, employers can enact and enforce reasonable call-in policies that employees seeking FMLA leave must follow unless unusual circumstances prevent them from feasibly doing so. While employers should ensure that the policies for providing notice of FMLA leave are explicit, clear, and uniformly applied, there is no longer a need to allow all employees a two-day window to account for their absences.