Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
A private sector company has a “no-fault” policy regarding unplanned leave. The company’s policies require an employee must call in at least one hour before the start of their shift. An employee will receive an attendance “demerit” for the unplanned absence if they call in at least one hour before the start of their shift, but will receive both an attendance demerit and a write-up if they do not call at least one hour before. If an employee does not comply with this policy and later informs the employer that the unplanned leave was FMLA, may the FMLA be disallowed and would he get an attendance demerit and/or write up? May the federal and private sectors treat unplanned FMLA leave similarly?
In the private sector, when the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable, and it is expected that absent unusual circumstances, an employee will be able to comply with the employer’s usual and customary notice requirements for requesting such leave, absent unusual circumstances. 29 CFR § 825.303. For example, an employer may require employees to call in at least one hour before the start of their shift in order to invoke FMLA leave in all but unusual circumstances. An exception may where an employee requires emergency medical treatment and is unable to call in prior to the start of his or her shift. In that case, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. If no such unusual circumstances exist and an employee does not comply with the employer’s usual notice and procedural requirements, then the employer may delay or deny that employee FMLA-protected leave. 29 CFR § 825.303(c).
The extent to which a private employer may delay FMLA coverage for leave depends on the particular facts. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer’s policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.
An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements. If an employer does not waive the notice requirements, the employer may take appropriate action under its internal rules and procedures for an employee’s failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the employee is aware of the FMLA notice requirements.
In the scenario above, if the employee calls in to take unscheduled FMLA leave less than one hour before the start of their shift and that employee cannot point to any unusual circumstances for why they did not comply with the employer’s notice requirements, the that employee could be written up for failing to follow the notice policy. The employee, however, could not receive an attendance demerit for the FMLA-protected leave.
The FMLA regulations applicable to federal employers do not have similar penalties for failing to comply with an employer’s notice requirements for its employees relating to unforeseeable leave. For federal employees, when the need for FMLA leave is not foreseeable, the employee shall provide notice within a reasonable period of time appropriate to the particular facts and circumstances surrounding the employee’s need for FMLA leave. 5 CFR § 630.1206. If necessary, notice may be given by an employee’s representatives. In any case, where the need for leave is not foreseeable and the employee is unable to provide notice of his or her leave because of circumstances beyond his or her control, the leave may not be denied or delayed.
Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.
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