(a) Timing of notice. When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of
the particular case. It generally should be practicable for the
employee to provide notice of leave that is unforeseeable within the
time prescribed by the employer's usual and customary notice
requirements applicable to such leave. See Sec. 825.303(c). Notice may
be given by the employee's spokesperson (e.g., spouse, adult family
member, or other responsible party) if the employee is unable to do so
personally. For example, if an employee's child has a severe asthma
attack and the employee takes the child to the emergency room, the
employee would not be required to leave his or her child in order to
report the absence while the child is receiving emergency treatment.
However, if the child's asthma attack required only the use of an
inhaler at home followed by a period of rest, the employee would be
expected to call the employer promptly after ensuring the child has
used the inhaler.
(b) Content of notice. An employee shall provide sufficient
information for an employer to reasonably determine whether the FMLA
may apply to the leave request. Depending on the situation, such
information may include that a condition renders the employee unable to
perform the functions of the job; that the employee is pregnant or has
been hospitalized overnight; whether the employee or the employee's
family member is under the continuing care of a health care provider;
if the leave is due to a qualifying exigency, that a covered military
member is on active duty or call to active duty status, that the
requested leave is for one of the reasons listed in Sec. 825.126(a),
and the anticipated duration of the absence; or if the leave is for a
family member that the condition renders the family member unable to
perform daily activities or that the family member is a covered
servicemember with a serious injury or illness; and the anticipated
duration of the absence, if known. When an employee seeks leave for the
first time for a FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA. When
an employee seeks leave due to a qualifying reason, for which the
employer has previously provided the employee FMLA-protected leave,
the employee must specifically reference either the qualifying
reason for leave or the need for FMLA leave. Calling in "sick"
without providing more information will not be considered sufficient
notice to trigger an employer's obligations under the Act. The employer
will be expected to obtain any additional required information through
informal means. An employee has an obligation to respond to an employer's
questions designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employer inquiries
regarding the leave request may result in denial of FMLA protection if
the employer is unable to determine whether the leave is FMLA-
qualifying.
(c) Complying with employer policy. 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. Similarly, in the case of an
emergency requiring leave because of a FMLA-qualifying reason, written
advance notice pursuant to an employer's internal rules and procedures
may not be required when FMLA leave is involved. 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.
[73 FR 68099, Nov. 17, 2008]
