(a) Proper notice required. In all cases, in order for the onset of
an employee's FMLA leave to be delayed due to lack of required notice,
it must be clear that the employee had actual notice of the FMLA notice
requirements. This condition would be satisfied by the employer's
proper posting of the required notice at the worksite where the
employee is employed and the employer's provision of the required
notice in either an employee handbook or employee distribution, as
required by Sec. 825.300.
(b) Foreseeable leave--30 days. When the need for FMLA leave is
foreseeable at least 30 days in advance and an employee fails to give
timely advance notice with no reasonable excuse, the employer may delay
FMLA coverage until 30 days after the date the employee provides
notice. The need for leave and the approximate date leave would be
taken must have been clearly foreseeable to the employee 30 days in
advance of the leave. For example, knowledge that an employee would
receive a telephone call about the availability of a child for adoption
at some unknown point in the future would not be sufficient to
establish the leave was clearly foreseeable 30 days in advance.
(c) Foreseeable leave--less than 30 days. When the need for FMLA
leave is foreseeable fewer than 30 days in advance and an employee
fails to give notice as soon as practicable under the particular facts
and circumstances, the extent to which an employer may delay FMLA
coverage for leave depends on the facts of the particular case. For
example, if an employee reasonably should have given the employer two
weeks notice but instead only provided one week notice, then the
employer may delay FMLA-protected leave for one week (thus, if the
employer elects to delay FMLA coverage and the employee nonetheless
takes leave one week after providing the notice (i.e., a week before
the two week notice period has been met) the leave will not be FMLA-
protected).
(d) Unforeseeable leave. When the need for FMLA leave is
unforeseeable and an employee fails to give notice in accordance with
Sec. 825.303, the extent to which an employer may delay FMLA coverage
for leave depends on the facts of the particular case. For example, if
it would have been practicable for an employee to have given the
employer notice of the need for leave very soon after the need arises
consistent with the employer's policy, but instead the employee
provided notice two days after the leave began, then the employer may
delay FMLA coverage of the leave by two days.
(e) Waiver of notice. An employer may waive employees' FMLA notice
obligations or the employer's own internal rules on leave notice
requirements. If an employer does not waive the employee's obligations
under its internal leave rules, the employer may take appropriate
action under its internal rules and procedures for failure to follow
its usual and customary notification rules, absent unusual
circumstances, as long as the actions are taken in a manner that does
not discriminate against employees taking FMLA leave and the rules are
not inconsistent with Sec. 825.303(a).
[73 FR 68100, Nov. 17, 2008]
