[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.302]



[Page 779-780]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

 Subpart C_How do Employees Learn of Their FMLA Rights and Obligations, 

            and What Can an Employer Require of an Employee?

 

Sec.  825.302  What notice does an employee have to give an employer when 

the need for FMLA leave is foreseeable?



    (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



[[Page 780]]



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.