Q. Can we require our employees to give us notice of when they need? Can we require that notice in writing?
A. Under the, until you receive proper notice, you have no obligations. Once an employee has notified you, however, you have an obligation to act.
You cannot impose special notice rules on an employee seeking FMLA leave. For example, you cannot allow someone to orally request normal sick leave or other time off, but require someone seeking FMLA leave to notify you using a special.
Once you receive proper notice, the regulations do permit you to require filling out a request form after the fact, but the form is not the triggering notice under the law. The oral notice is the notice that counts.
Here are the general rules for FMLA notifications:
• Notice need only be oral.
• The employee is required to notify the person he or she normally notifies for other types of absences. You cannot channel FMLA notices to someone different than the person with whom the employee normally communicates. To require otherwise would be to transfer the obligation of who has to know what is, and is not, FMLA.
The necessary implication is that those who receive calls concerning absences must have a working knowledge of the FMLA and what it covers.
• It is unlawful to require an employee to give notice sooner than is practicable under the circumstances. Rigid adherence to a rule requiring an employee to call in at least 30 minutes or one hour before a shift will be deemed unlawful under the FMLA if the employee could not do so under the circumstances.
• An employee is not required to know he or she needs FMLA leave. Employees are only required to provide facts that suggest they may be entitled to FMLA leave. This is another reason why anyone who receives calls related to absences must understand the FMLA.
Subject to those rules, you can create and enforce call-in procedures that set forth:
- Who an employee must call
- What the employee must say (i.e., the details giving rise to the absence)
- When the employee must call in
- Where the employee must call (preferably to someone live, not just leaving a voice-mail message)
- How the employee must call (for example, requiring the employee to make the call, not his or her spouse
- Why the employee must follow these rules.
If the notice is proper but late, the lateness does not bar FMLA leave. It merely delays what absences are protected under the FMLA.
To properly evaluate what is, and is not, covered by the FMLA as a result of notice, the employer must pinpoint when appropriate notice was given, determine when notice should have been given, and come up with the difference. Any absence that occurs within that period or difference is not protected by the FMLA.
If notice is properly given, then the employer has an obligation to act. If FMLA has already been approved for the type of leave, then the employer has the responsibility to code the leave as FMLA and not factor the leave into any employment decision. If the employee has never asked for leave for the particular reason given, then the employer has an obligation to make additional assessments and eligibility determinations.
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