In 1999, the U.S. Dept. of Labor had interpreted the Family and Medical Leave Act as allowing an eligible employee up to two business days to notify the employer that leave was taken for FMLA purposes. It has now rescinded that opinion, saying it “mistakenly read” the applicable FMLA regulations.

According to an employer requesting clarification, the old opinion prevented 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 provide notice within two business days that the leave was FMLA-qualifying, regardless of whether they could have practicably provided notice earlier. Now, the DOL says, “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, in the example [cited in the requestor’s 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 FMLA leave for the absence,” the DOL opinion states.