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Guest Article
(From the May 18, 2009 issue of Deloitte's Washington Bulletin, a periodic update of legal and regulatory developments relating to Employee Benefits.)
"2-Day Rule" for FMLA Notice No Longer Applies
Unless it is an emergency, an employee who becomes aware of the need for FMLA leave less than 30 days in advance is generally expected to provide notice of the need for leave the same day (where the need is discovered during work hours) or the next business day (where the need is discovered after work hours), according to the Department of Labor. Therefore, it generally should be practicable for the employee to give notice within the time limits prescribed by the employer's call-in or notice policy.
New FMLA Regulations Addressed the "2-Day Rule"
On January 16, 2009, new final regulations became effective under the Family and Medical Leave Act (FMLA). The prior regulations required an employee to provide notice "as soon as practicable" where the need for leave was foreseeable less than 30 days in advance -- and clarified that this ordinarily would mean within one or two business days after the need for the leave became known to the employee. A Wage and Hour Opinion Letter, FMLA-101, later interpreted this requirement to bar an employer's attendance policy that required an employee who was taking intermittent FMLA leave to report in at least one hour after the start of the shift. The Opinion Letter reasoned that the employer's policy imposed a more stringent notification requirement than the FMLA, which provided a more generous "2-day rule."
In 2008, when the new final regulations were proposed, the Department of Labor (DOL) squarely addressed the 2-day rule as problematic:
Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999), in effect, mistakenly read the regulations as allowing employees two business days from learning of their need for leave to provide notice to their employers, regardless of whether it would have been practicable to provide notice more quickly. |
The DOL proposed that the new regulation delete the regulatory language that defined "as soon as practicable" as "ordinarily ... within one or two business days." That proposal was adopted in the final regulations, which now provide:
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. DOL Reg. § 825.303(a) |
Opinion Letter Affirms that the "2-Day Rule" is Rescinded
In an FMLA Opinion Letter issued on January 6, 2009, the Wage and Hour Division responded to a request for clarification of the notice requirements under Opinion FMLA-101. The DOL outlined the changes that had recently been made in the regulations and stated that, to the extent Opinion FMLA-101 has been interpreted to create a flat "2-Day Rule," it is rescinded. Directly addressing the particular employer policy, the DOL made clear:
Thus, in the example you cite in your letter of an employer policy requiring employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer's policy, the employer may deny leave for the absence. |
| The information in this Washington Bulletin is general in nature only and not intended to provide advice or guidance for specific situations.
If you have any questions or need additional information about articles appearing in this or previous versions of Washington Bulletin, please contact: Robert Davis 202.879.3094, Elizabeth Drigotas 202.879.4985, Mary Jones 202.378.5067, Stephen LaGarde 202.879-5608, Erinn Madden 202.572.7677, Bart Massey 202.220.2104, Mark Neilio 202.378.5046, Tom Pevarnik 202.879.5314, Sandra Rolitsky 202.220.2025, Deborah Walker 202.879.4955. Copyright 2009, Deloitte. |
BenefitsLink is an independent national employee benefits information provider, not formally affiliated with the firms and companies who kindly provide much of the content and advertisements published on this Web site, including the article shown above. |