On May 5, 2009, the Department of Labor’s Wage and Hour Division (WHD) posted a new opinion letter on the scope of permissible employer policies requiring employees to provide notice of FMLA leave, which the WHD designated as FMLA2009-1-A.

Signed by Acting Administrator Alexander Passantino, the new letter expressly supersedes a January 15, 1999 opinion letter (designated as FMLA-101). The prior opinion letter had been interpreted to prohibit employers from applying internal call-in policies, disciplining employees under no call/no show policies, or disciplining employees who call in late, as long as the employees provided notice within two business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner.

When the DOL published on February 11, 2008, a Notice of Proposed Rulemaking (NPRM) on proposed changes to the 1995 FMLA regulations, it clarified that regulatory language requiring employees who cannot provide the required 30 days advance notice to provide notice of the need for FMLA leave “as soon as practicable . . . ordinarily . . . within one or two business days of when the need for leave becomes known to the employee” was intended as an illustrative outer limit only. The DOL asserted that FMLA-101’s so-called “two day rule” for FMLA notice “in effect, mistakenly read the regulation 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” (emphasis added). The revised regulation, which became effective on January 16, 2009, clarifies that where an employee cannot provide 30 days advance notice of FMLA leave, “it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day” after becoming aware of the need for leave, but that “the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.” 29 C.F.R. § 825.302(b).

The new WHD opinion letter notes that “where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced.” Thus, the determination of the adequacy of an employee’s notice is driven by the individual facts and circumstances, rather than an arbitrary two-day timeframe. The regulation itself also recognizes employers’ ability to enforce reasonable call-in policies. “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” so long as the employer does not delay or deny leave where the employee provides timely notice as set by the regulation.  29 C.F.R. § 825.302(d).

Therefore, to the degree that WHD Opinion Letter FMLA-101 had been interpreted to create a flat “two day rule,” the Department’s new letter officially rescinds it.