(a) An employee must provide the employer at least 30 days advance
notice before FMLA leave is to begin if the need for the leave is
foreseeable based on an expected birth, placement for adoption or foster
care, or planned medical treatment for a serious health condition of the
employee or of a family member. If 30 days notice is not practicable,
such as because of a lack of knowledge of approximately when leave will
be required to begin, a change in circumstances, or a medical emergency,
notice must be given as soon as practicable. For example, an employee's
health condition may require leave to commence earlier than anticipated
before the birth of a child. Similarly, little opportunity for notice
may be given before placement for adoption. Whether the leave is to be
continuous or is to be taken intermittently or on a reduced schedule
basis, notice need only be given one time, but the employee shall advise
the employer as soon as practicable if dates of scheduled leave change
or are extended, or were initially unknown.
(b) ``As soon as practicable'' means as soon as both possible and
practical, taking into account all of the facts and circumstances in the
individual case. For foreseeable leave where it is not possible to give
as much as 30 days notice, ``as soon as practicable'' 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.
(c) An employee shall provide at least verbal notice sufficient to
make the employer aware that the employee needs FMLA-qualifying leave,
and the anticipated timing and duration of the leave. The employee need
not expressly assert rights under the FMLA or even mention the FMLA, but
may only state that leave is needed for an expected birth or adoption,
for example. The employer should inquire further of the employee if it
is necessary to have more information about whether FMLA leave is being
sought by the employee, and obtain the necessary details of the leave to
be taken. In the case of medical conditions, the employer may find it
necessary to inquire further to determine if the leave is because of a
serious health condition and may request medical certification to
support the need for such leave (see Sec. 825.305).
(d) An employer may also require an employee to comply with the
employer's usual and customary notice and procedural requirements for
requesting leave. For example, an employer may require that written
notice set forth the reasons for the requested leave, the anticipated
duration of the leave, and the anticipated start of the leave. However,
failure to follow such internal employer procedures will not permit an
employer to disallow or delay an employee's taking FMLA leave if the
employee gives timely verbal or other notice.
(e) When planning medical treatment, the employee must consult with
the employer and make a reasonable effort to schedule the leave so as
not to disrupt unduly the employer's operations, subject to the approval
of the health care provider. Employees are ordinarily expected to
consult with their employers prior to the scheduling of treatment in
order to work out a treatment schedule which best suits the needs of
both the employer and the employee. If an employee who provides notice
of the need to take FMLA leave on an intermittent basis for planned
medical treatment neglects to consult with the employer to make a
reasonable attempt to arrange the schedule of treatments so as not to
unduly disrupt the employer's operations, the employer may initiate
discussions with the employee and require the employee
to attempt to make such arrangements, subject to the approval of the
health care provider.
(f) In the case of intermittent leave or leave on a reduced leave
schedule which is medically necessary, an employee shall advise the
employer, upon request, of the reasons why the intermittent/reduced
leave schedule is necessary and of the schedule for treatment, if
applicable. The employee and employer shall attempt to work out a
schedule which meets the employee's needs without unduly disrupting the
employer's operations, subject to the approval of the health care
provider.
(g) An employer may waive employees' FMLA notice requirements. In
addition, an employer may not require compliance with stricter FMLA
notice requirements where the provisions of a collective bargaining
agreement, State law, or applicable leave plan allow less advance notice
to the employer. For example, if an employee (or employer) elects to
substitute paid vacation leave for unpaid FMLA leave (see Sec. 825.207),
and the employer's paid vacation leave plan imposes no prior
notification requirements for taking such vacation leave, no advance
notice may be required for the FMLA leave taken in these circumstances.
On the other hand, FMLA notice requirements would apply to a period of
unpaid FMLA leave, unless the employer imposes lesser notice
requirements on employees taking leave without pay.
