On April 6 the U.S. Department of Labor issued an opinion letter addressing the misperception that employees have two business days from learning of their need for FMLA leave to provide notice to their employers, even if the employee could have provided notice more quickly.  Employees are actually required to give notice as “soon as practicable” which, depending on the circumstances, the Department states should generally be within the time prescribed by the employer’s policy on reporting absences.  For example, if employees are required to report absences 30 minutes before the start of their shift, an employee who learns of the need for FMLA leave two hours before his shift would be expected to comply with the employer’s policy unless circumstances prevent him from doing so.  

In its opinion letter, the Department recognizes that call-in procedures are routinely enforced and “are critical to an employer’s ability to ensure appropriate staffing levels.”  Accordingly, 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.    See DOL Opinon Letter FMLA2009-1-A,  January 6, 2009.