DoL: No Guaranteed Minimum Timing for FMLA Notice

May 8, 2009 ( - The Family and Medical Leave Act's (FMLA) requirement of a notice to the employer "as is practicable" does not guarantee a worker a particular number of days in which to make that request, the Department of Labor (DoL) said.

In an opinion letter from the agency’s Wage and Hour Division, the DoL said its 1995 FMLA regulation did not intend to formally codify a one or two-day notice standard. The 1995 law mandated a notice to employers in instances when the need for the leave only became foreseeable less than 30 days before “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” .

However, the department’s 2009 final FMLA regulation does not include the one or two-day notice standard (See  DoL to Publish Final FMLA Regs ), and the opinion letter said an employer was allowed to require an even shorter time frame when it is practicable for the worker to provide it.

The 2009 regulation now provides:   “When an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day.” The regulation also provides, “In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.”

The latest DoL opinion letter said the new regulation provides that in requesting leave to address foreseeable and unforeseeable needs, “employees must comply with their employers’ usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.”

The opinion letter was signed by Alexander J. Passantino, who served as acting administrator of the Wage and Hour Division at the end of the Bush Administration.

The letter is available  here.