(a) Timing of notice. 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, planned medical treatment for a serious health
condition of the employee or of a family member, or the planned medical
treatment for a serious injury or illness of a covered servicemember.
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. For foreseeable leave due to a qualifying
exigency notice must be provided as soon as practicable, regardless of
how far in advance such leave is foreseeable. Whether FMLA 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. In those cases where
the employee is required to provide at least 30 days notice of
foreseeable leave and does not do so, the employee shall explain the
reasons why such notice was not practicable upon a request from the
employer for such information.
(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. 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. In all cases, however, the determination of when
an employee could practicably provide notice must take into account the
individual facts and circumstances.
(c) Content of notice. 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. 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
[[Page 68099]]
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, and that the requested
leave is for one of the reasons listed in Sec. 825.126(a); 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 FMLA-qualifying reason, for
which the employer has previously provided FMLA-protected leave, the
employee must specifically reference the qualifying reason for leave or
the need for FMLA leave. In all cases, 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). An employer may also request certification to support
the need for leave for a qualifying exigency or for military caregiver
leave (see Sec. Sec. 825.309, 825.310). When an employee has been
previously certified for leave due to more than one FMLA-qualifying
reason, the employer may need to inquire further to determine for which
qualifying reason the leave is needed. 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.
(d) Complying with employer policy. An employer may require an
employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave, absent unusual
circumstances. 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. An employee also
may be required by an employer's policy to contact a specific
individual. Unusual circumstances would include situations such as when
an employee is unable to comply with the employer's policy that
requests for leave should be made by contacting a specific number
because on the day the employee needs to provide notice of his or her
need for FMLA leave there is no one to answer the call-in number and
the voice mail box is full. Where 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. However, FMLA-protected leave may not be delayed
or denied where the employer's policy requires notice to be given
sooner than set forth in paragraph (a) of this section and the employee
provides timely notice as set forth in paragraph (a) of this section.
(e) Scheduling planned medical treatment. When planning medical
treatment, the employee must consult with the employer and make a
reasonable effort to schedule the treatment 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. For example, 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
effort 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. See Sec. Sec. 825.203 and 825.205.
(f) Intermittent leave or leave on a reduced leave schedule must be
medically necessary due to a serious health condition or a serious
injury or illness. 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 for such leave that 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. See
Sec. 825.304.
[73 FR 68098, Nov. 17, 2008]
