Employee Failure to Provide Notice

Foreseeable Leave of 30 Days or More

• When the need for FMLA leave is foreseeable at least 30 days in advance and an employee fails to give timely advance notice with no reasonable excuse, the employer may delay FMLA coverage until 30 days after the date the employee provides notice. The need for leave and the approximate date leave would be taken must have been clearly foreseeable to the employee 30 days in advance of the leave.

• When the need for FMLA leave is foreseeable fewer than 30 days in advance and an employee fails to give notice as soon as practicable under the particular facts and circumstances, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. For example:
  • If the employee reasonably should have given the employer two weeks notice but only provided one week notice, the employer may delay FMLA-protected leave for one week. If the employee takes the leave with only one week of notice provided, the leave for that week will not be FMLA-protected.
  • If it would have been practicable for the employee to give notice consistent with the employer's policy, but the employee gives notice two days after the leave began, the employer may delay the FMLA protection of the leave by two days.

An employer may waive the employee's FMLA obligations or the employer's own internal rules on leave notice requirements. If an employer does not waive the employee's obligations and the employee fails to follow the employer's usual and customary notification rules, the employer may take appropriate action, absent unusual circumstances. Such action may be taken as long as it is taken in a manner that does discriminate against employees taking FMLA leave and is consistent with FMLA notice requirements for unforeseeable FMLA leave (i.e., an employee requesting unforeseeable FMLA leave may be required to provide notice as soon as practicable under the particular facts and circumstances).

In all cases, in order for the start of an employee's FMLA leave to be delayed due to lack of required notice, it must be clear that the employee had actual notice of the FMLA notice requirements.

To learn more about notices the employer is required to provide to the employee, see Employer Notice Requirements and Recordkeeping.

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For more information on this aspect of the FMLA, see the FMLA regulations: § 825.304