FMLA FMLA Notice Requirements & Employee Obligations 1 — Questions and Answers
Question 1: When the need for FMLA leave is foreseeable, how many days advance notice must an employee provide?
- 7 days
- 14 days
- 30 days (Correct answer)
- 60 days
Correct answer: 30 days
When the need for FMLA leave is foreseeable, such as a scheduled surgery or known pregnancy, the employee must provide at least 30 days advance notice whenever practicable.
29 CFR 825.302(a) requires 30 days advance notice when the leave is foreseeable. If 30 days is not practicable, notice must be given as soon as practicable. Failure to provide timely notice may allow the employer to delay the start of FMLA leave by up to 30 days.
Question 2: Which of the following is sufficient notice for an employee to trigger the employer's FMLA obligations?
- Emailing that you need a personal day tomorrow
- Calling in to say you have back surgery next week and will be out for at least two weeks (Correct answer)
- Texting that you are not feeling well and won't be in
- Submitting a general vacation request
Correct answer: Calling in to say you have back surgery next week and will be out for at least two weeks
An employee does not need to mention FMLA by name, but must provide enough information to put the employer on notice that the absence may be FMLA-qualifying. Surgery requiring two or more weeks of recovery qualifies.
29 CFR 825.303(b) states employees need not use the term FMLA or identify a qualifying reason specifically. They must provide information sufficient to alert the employer that the absence could qualify under FMLA. Mentioning surgery with an extended recovery period is sufficient.
Question 3: An employee on intermittent FMLA leave must notify the employer of unforeseeable absences when?
- At least 24 hours before each absence
- As soon as practicable, generally the same day or the next business day (Correct answer)
- Within 3 business days
- Within 1 week
Correct answer: As soon as practicable, generally the same day or the next business day
For unforeseeable intermittent leave, employees must notify the employer as soon as practicable, which typically means the same day or the next business day unless extraordinary circumstances exist.
29 CFR 825.303(a) provides that employees must give notice as soon as practicable when leave is unforeseeable, which ordinarily means the same business day or the next business day. If the employee fails to provide timely notice without a good reason, the employer may delay or deny the FMLA designation for that absence.
Question 4: An employee asks a coworker to call the employer and report the absence due to an FMLA condition. Is this sufficient notice?
- No, the employee must always call personally
- Yes, if the coworker provides sufficient information about the qualifying reason (Correct answer)
- Only if the coworker submits a written statement
- No, only HR can accept FMLA notice
Correct answer: Yes, if the coworker provides sufficient information about the qualifying reason
FMLA allows a third party such as a family member or coworker to provide notice on the employee's behalf when the employee is incapacitated. As long as the notice contains enough qualifying information, it is sufficient.
29 CFR 825.303(a) allows an employee's spokesperson to give notice of the need for FMLA leave if the employee is unable to do so personally due to the condition. The spokesperson must provide enough information for the employer to recognize the potential FMLA qualifying reason.
Question 5: Which notice situation allows an employer to delay the start of FMLA leave?
- When the employee is incapacitated and a family member gave notice
- When the employee fails to provide 30 days advance notice for foreseeable leave without a reasonable excuse (Correct answer)
- When the leave is for an emergency qualifying exigency
- When the employee's certification is still pending
Correct answer: When the employee fails to provide 30 days advance notice for foreseeable leave without a reasonable excuse
If an employee fails to provide required 30-day advance notice for foreseeable FMLA leave without a reasonable excuse, the employer may delay the start of FMLA leave by up to 30 days.
Per 29 CFR 825.304(b), if an employee does not provide 30 days advance notice for foreseeable FMLA leave when it was practicable to do so, the employer may delay FMLA protections until 30 days after the employee provides notice. The employer cannot delay leave if the employee had a legitimate reason for not giving advance notice.
Question 6: What is an employer's obligation if it recognizes that an employee's absence is FMLA-qualifying but the employee has not mentioned FMLA?
- Wait until the employee explicitly requests FMLA
- Notify the employee of their potential FMLA rights and begin the designation process (Correct answer)
- Deny the leave since FMLA was not invoked
- Contact the employee's doctor without the employee's knowledge
Correct answer: Notify the employee of their potential FMLA rights and begin the designation process
The employer has an affirmative duty to recognize potential FMLA qualifying situations and notify the employee of their rights, even if the employee does not mention FMLA by name.
29 CFR 825.300(b) and 825.303 impose an affirmative duty on employers to provide the Notice of Eligibility (WH-381) within 5 business days when the employer becomes aware that the leave may be FMLA-qualifying. The employer cannot simply wait for the employee to invoke FMLA. Failure to provide this notice may prevent the employer from counting the time against the FMLA entitlement.
FMLA FMLA Notice Requirements & Employee Obligations 1
When the need for FMLA leave is foreseeable, how many days advance notice must an employee provide?