If employee gives late FMLA notice, when must you cut slack?

The FMLA regulations that were finalized in 2009 gave employers new powers to demand notification from employees.

Previously, employees could give notice of their need for unforeseen FMLA leave up to two days after being out on leave, even if they could have given notice earlier. But the new rules say employees must follow their employer’s call-in procedures for reporting such absences, unless there are “unusual circumstances.”

Advice: Pay attention to that last phrase. While you can now hold employees to your “usual and customary” notice procedures when they’re notifying you of unexpected FMLA leave, you must allow some flexibility for emergency circumstances (see box below).

Recent case: A Texas medical center had approved employee Shauna Saenz for intermittent FMLA leave due to chronic seizures. She was required to report any absences attributable to the condition to an outside administrator within two days of missing work. She did this on several occasions.

One day, Saenz’s mother called the center and said she had found her daughter disoriented and hallucinating. A supervisor suggested she take Saenz to the emergency room. The supervisor even stopped by the ER later to check on her.

Saenz was transferred to another hospital for psychiatric treatment and released a few days later.

The medical center fired Saenz for failing to call the outside administrator to report her absences.

She sued and the court sided with her, saying that, under the circumstances, holding Saenz to the two-day requirement was unreasonable. (Saenz v. Harlingen Medical Center, No. 09-40887, 5th Cir., 2010)

Online resource: Find model FMLA notification and certification forms at www.dol.gov/whd/fmla.

FMLA notice requirements in cases of emergency

“When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. For example, an employer may require employees to call a designated number or a specific individual to request leave.

“However, if an employee requires emergency medical treatment, 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 an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.”

— U.S. Department of Labor FMLA regulations 29 CFR 825.303(c)