Employment: Employers Can Enforce Reasonable Call-In Rules


The Department of Labor recently released a clarification of employee notification procedures under the Family and Medical Leave Act. The FMLA requires an employee, when possible, to give an employer 30 days’ notice before a leave is to begin. When it’s not possible to provide 30 days’ notice, employees must provide notice as soon as practical. According to the FMLA regulations, this meant that an employee must at least give verbal notice to an employer within one or two business days after the need for leave is known. In a 1999 Opinion Letter, the Department of Labor interpreted the regulation in a way that conflicted with the attendance policies of many employers. That Opinion Letter stated that an employer could not enforce an attendance policy that required employees taking intermittent FMLA leave to report within one hour after the start of their shift unless they were unable to report due to circumstances beyond their control. Policies like this were unenforceable, in the opinion of the Department, because they were stricter than the regulation which allowed employees up to two days to report an absence.

In 2008, the Department acknowledged that it had misinterpreted the notice provisions of the regulation and began developing a revised regulation to clarify the issue. The Department recognized that call-in procedures are routinely enforced in the workplace and are critical to an employer’s ability to ensure appropriate staffing levels. The regulation under development would, therefore, allow employers to enforce call-in procedures that did not impose a timing requirement stricter than the FMLA requirement.

The revised regulation became effective January 16, 2009. It includes the statement that generally it should be practical for an employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements. The result is that, absent emergency situations, when an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practical for the employee to provide notice of the need for leave either the same day (if the employee becomes aware of the need for leave during work hours) or the next business day (if the employee becomes aware of the need for leave after work hours). As with most government pronouncements, the new regulation contains a caveat that the determination of when an employee could practically provide notice must take into account the individual facts and circumstances of the employee’s situation.

By Rebecca M. Fowler, rfowler@dsda.com.

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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