825.304 - What recourse do employers have if employees fail to provide
the required notice?
- Standard Number: 825.304
- Standard Title: What recourse do employers have if employees
fail to provide the required notice?
- SubPart Number: C
- SubPart Title: How Do Employees Learn of Their FMLA Rights and
Obligations, and What Can an Employer Require of an Employee?
(a) An employer may waive employees' FMLA notice obligations
or the employer's own internal rules on leave notice requirements.
(b) If an employee fails to give 30 days notice for foreseeable
leave with no reasonable excuse for the delay, the employer may deny the
taking of FMLA leave until at least 30 days after the date the employee
provides notice to the employer of the need for FMLA leave.
(c) In all cases, in order for the onset 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. This condition
would be satisfied by the employer's proper posting of the required notice
at the worksite where the employee is employed. Furthermore, 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. For example,
knowledge that an employee would receive a telephone call about the availability
of a child for adoption at some unknown point in the future would not be
sufficient.
(d) Where the employee elects or the employer requires use of paid
leave, or where the employer has a less stringent policy regarding requests
for ``leave without pay,'' such as for leave of short duration, the employer's
usual policy for notification for such leave shall apply.
(e) If an employer does not waive employees' notice requirements
and chooses to take action against an employee for violating these notice
requirements, the employer's policies and procedures must be uniformly
applied in similar circumstances.