In early 2009, the Department of Labor issued new regulations interpreting and applying the statutory provisions of the Family and Medical Leave Act of 1993. These regulations made a variety of changes ( both procedural and substantive) to the previous regulatory scheme. However, as the regulations were so recently adopted, decisions interpreting these new regulations do not yet exist in significant numbers. Accordingly, when the Labor Department recently issued an Opinion Letter (FMLA2009-1-A) providing insight into the application of one aspect of these new regulations, notice was taken, especially since this Opinion Letter addresses the notice that an employer can require from employees requesting FMLA and an employer's ability to require its employees to follow its established call-in procedures.

The FMLA requires employees to provide their employers with notice of their foreseeable leave, 30 days before the leave is to begin where possible. If it is not possible for an employee to provide 30 days' notice, he must provide "such notice as is practicable." See 29 U.S.C. § 2612(e). The Department of Labor's original regulations, issued in 1995, provided that when leave is foreseeable less than 30 days in advance, notice must be provided "as soon as practicable," which the regulations further clarified "ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee." 29 C.F.R. § 825.302(b). Opinion letter FMLA-101, issued on Jan. 15, 1999, interpreted this language restrictively, barring an employer's attendance policy that required employees taking intermittent FMLA leave to report within one hour after the start of their shift unless they were unable to report due to circumstances beyond their control. In other words, the "within one or two business days" language of the 1995 regulation was interpreted as an absolute floor on an employer's ability to require notice of its employees' FMLA-covered leave.

However, the recent amendments to the DOL's FMLA regulations address this issue and set forth new standards for what notice is "practicable" under the Act. The DOL's Notice of Proposed Rulemaking with respect to the FMLA regulations, in 2008, proposed deletion of the "within one or two business days" provision from the regulations, because "[w]hile the 'one to two business days' timeframe was intended as an illustrative outer limit, Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999), in effect, mistakenly read the regulation as allowing 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." Accordingly, consistent with the language of the FMLA, the DOL proposed that "absent unusual circumstances, employees may be required to follow established call-in procedures (except one that imposes a more stringent time requirement than the regulations provide), and failure to properly notify employers of absences may cause a delay or denial of FMLA protections."

In the final FMLA regulations, issued by the DOL on November 17, 2008, the DOL adopted its intended changes on this issue, stating that "it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day." Further, the new regulations provide that "[i]t generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave." 73 Fed. Reg. 68099. In fact, the DOL specifically stated that it "recognizes that call-in procedures are routinely enforced in the workplace and are critical to an employer's ability to ensure appropriate staffing levels." 73 Fed. Reg. 68006. However, the Department stressed that "both current and proposed § 825.302(b) defined 'as soon as practicable' as 'as soon as both possible and practical, taking into account all the facts and circumstances of the individual case.'" Accordingly, "[t]he deletion of the 'two-day rule' does not change the fact that whether notice is given as soon as practicable will be determined based on the particular facts and circumstances of the employee's situation." 73 Fed. Reg. 68003.

This new Opinion Letter's significance lies in its reaffirming of the new regulations' conclusion that employees may be required, absent unusual circumstances, to follow their employer's established call-in procedures to qualify for FMLA leave, which should allow employers to be more proactive in addressing FMLA situations, and avoid the problems caused by the old "two-day rule." In other words, absent unusual circumstances, an employer may deny or delay FMLA leave to an employee who fails to provide the employer with notice of the need for that leave by complying with the employer's established call-in procedure. In the event, however, the employee is able to show that exigent circumstances prevented her from following the call-in procedures (e.g., the reason for FMLA leave was the employee's daughter's sudden illness which required an ambulance to be summoned for an emergency trip to the hospital, and she wasn't able to call in until her daughter's condition had stabilized), then those unusual circumstances will likely allow her to qualify for FMLA leave, despite the failure to call-in.