Whenever an employee needs to take leave under the Family Medical Leave Act, he or she must inform the company as soon as possible. Failure to notify the company within the time frame specified under the FMLA or failure to follow company policy for requesting FMLA leave may result in coverage being delayed or denied.
Whether FMLA coverage can be delayed or denied depends on multiple factors, including whether the leave is foreseeable or unforeseeable.
Foreseeable vs. unforeseeable leave
If the leave is foreseeable — such as a scheduled surgery, expected childbirth or planned medical treatment — the employee must provide at least 30 days' advance notice.
However, the FMLA takes into account that things can happen unexpectedly, and it may not always be possible for employees to give 30 days' notice. In such cases, the leave is unforeseeable. For instance, an employee's surgery may be rescheduled for an earlier date by his or her physician, or the employee's baby may be born prematurely.
When the leave is unforeseeable, the employee must inform his or her employer of the need to take leave "as soon as possible and practical."
If the employee doesn't give 30 days' advance notice and has no reasonable excuse, FMLA coverage can be delayed until 30 days after the date the company received the notice.
Or, if the employee could have notified the company on time but didn't, FMLA coverage can be delayed by the amount of time the notice was delayed. For instance, if the employee took two days to notify the employer but could have done so earlier, coverage can be delayed by two days.
FMLA regulations clearly state that "an employer may require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances." This means the employer can establish policies and procedures regarding FMLA notification. It also means that the employer may delay or deny FMLA coverage if the employee fails to follow company policy and no unusual circumstances prevented him or her from complying.
Along with developing written rules, employers may create a call-in policy. For instance, the written notice may require that employees state the reasons for requesting FMLA-protected leave and the expected length and start date of the leave.
The call-in policy may require that employees contact a specific person. An unusual circumstance would be created if the employee calls the designated phone number, but no one answers, or he or she isn't able to leave a message because the voicemail box is full. As noted, FMLA coverage should not be delayed or denied if there's an unusual circumstance.
Another thing to remember is that a company cannot delay or deny FMLA coverage if the employee complies with the FMLA's 30-day notification deadline, but company policy says notice must be given sooner.
Employees who fail to follow FMLA notice requirements and company policy risk sinking their FMLA request. Both employers and employees must follow the rules in order to keep the leave system running effectively.
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