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A Shift in Focus: How Recent Amendments to 29 CFR 825.303 Could Impact Employee Notice Requirements Under the FMLA Leave Provisions

Posted In Employment Law

Introduction -

A little more than two years has passed since the United States Department of Labor (“DOL”) promulgated significant changes to the Family Medical Leave Act (“FMLA”). The revisions, which went into effect on January 16, 2009, touched on a number of FMLA provisions, including the employee notice requirements in 29 C.F.R. § 825.303 et. seq.

Though the impact of these revisions remains somewhat unsettled due to the minimal number of decisions in cases citing to the new regulations, several recent court decisions have discussed and interpreted the revised language and in doing so have provided guidance as to the potential effect of the new language. As set forth below, in light of these courts’ interpretations of the revisions, employers would be wise to reexamine their employee notice policies.

The Revised Language -

Among other things, the DOL revised the language of the statute as it pertains to unforeseeable leave; i.e., cases in which an employee does not provide the 30 day notice of their need for FMLA leave as required by 29 C.F.R.§ 825.302 due to an emergency or other unforeseen circumstances.

Prior to the DOL revisions in 2009, 29 C.F.R. § 825.303(a) stated that: “When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not foreseeable.” (emphasis added).

The revised 29 C.F.R. § 825.303(a) now states: “When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” (emphasis added).

Though on its face this change in wording might not appear to be significant, as set forth below, the way in which courts are interpreting the revised language indicates that the new provisions may end up having a significant impact on how employers should handle their employee notice policies going forward.

Recent Judicial Interpretation –  As noted, the revisions are relatively new and, as such, very few courts have had the opportunity to review and interpret the changes. Accordingly, employers have been left to wonder what impact the revisions will have on their operations.

Although not expressly dealing with the current version of 29 C.F.R. § 825.303(a), a few recent appellate-level rulings have discussed the revised regulations and have offered their interpretation of what the impact might be. 

 Saenz v. Harlingen Medical Center, L.P., 613 F.3d 576 (5th Cir. 2010)

 In Saenz, the employer had a written policy requiring employees to provide a third party FMLA administrator with notice of intent to use FMLA leave within two (2) days after their last absence. An employee who requested intermittent leave was terminated and denied her FMLA rights because, though her mother contacted the employer directly within two days, she did not contact the third party administrator until five days after the leave. In applying the old regulation, the Fifth Circuit Court of Appeals found that the employee’s notice was sufficient even though it did not entirely conform to the employer’s written policy requiring notice within a two day period.

Importantly, the court indicated that the outcome may have been just the opposite had the new regulation been applied. The court stated that “the revisions to 29 C.F.R. § 825.303 – arguably increases the duties imposed upon employees seeking FMLA leave.”  Thus, because the employee failed to provide notification to her employer “within the time prescribed by the employer’s usual and customary notice requirement,” the court instructed that under the new regulation the employer likely would have been entitled to a summary judgment.       

 Brown v. Automotive Components Holdings, LLC, 622 F.3d 685 (7th Cir. 2010)

In Brown, the Seventh Circuit Court of Appeals undertook a comparison of the two versions of the regulation. There, an employee failed to contact the employer until nine days after she learned of her need for extended leave. Applying the old rule, the Seventh Circuit found that the employee was expected to provide notice within two working days of learning of the need for the leave, and, consequently, the employer was entitled to summary judgment.

As in Saenz, however, the court found that application of the revised regulation would have necessitated a different analysis. To wit, the court indicated that in its view, the revised language effectively diminishes the effect of the rigid two-day standard and instead focuses on the requirements of the employer’s own policy. Although this would have had no effect on the outcome in Brown, the court’s emphasis on the employer’s policy is clear.   

Scobey v. Nucor Steel-Arkansas, 580 F,3d 781 (8th Cir. 2009).

It is worth mentioning that the revisions to 29 C.F.R. § 825.303 may also impact the type of notice that is required. In Scobey, the Eighth Circuit Court of Appeals noted that under the former version of 29 C.F.R. § 835.305, an employee’s notice “need not explicitly assert rights under FMLA or even mention the FMLA.”  Thus, the old rule’s standard for notice was more generous to the employee. 

However, the Eighth Circuit went on to indicate that the recent amendments to 29 C.F.R. § 825.303(b) effectuate a more stringent notice standard:

“[T]he employee must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in “sick” without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act. The employer will be expected to obtain any additional required information through informal means. An employee has an obligation to respond to an employer’s questions designed to determine whether an absence is potentially FMLA-qualifying.” Scobey at 785.

Conclusion

Although we have seen few, if any, post-revision judicial opinions applying the current version of 29 C.F.R. § 825.303, the above cases offer a glimpse into how courts may approach the issue in future litigation. As the opinions in Saenz, Brown and Scobey indicate, under the revised version of 29 C.F.R.§ 825.303, where leave is not foreseeable, an employee must provide prompt, adequate notice and must strictly comply with their employer’s usual procedures for requesting unforeseeable leave.

Consequently, employers would be well served to implement or revise their employee leave policies to include specific employee notice requirements.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice. Special thanks to Emily Grant, Law Clerk, and Andrew Trimble, Law Clerk, for contributions to this article.

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