C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER C—OTHER LAWS › PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993 › Subpart C—Employee and Employer Rights and Obligations Under the Act

29 C.F.R. § 825.304

Employee failure to provide notice

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) Proper notice required. 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 and the employer's provision of the required notice in either an employee handbook or employee distribution, as required by § 825.300.

(b) Foreseeable leave—30 days. 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. 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 to establish the leave was clearly foreseeable 30 days in advance.

(c) Foreseeable leave—less than 30 days. 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 an employee reasonably should have given the employer two weeks notice but instead only provided one week notice, then the employer may delay FMLA-protected leave for one week (thus, if the employer elects to delay FMLA coverage and the employee nonetheless takes leave one week after providing the notice (i.e., a week before the two week notice period has been met) the leave will not be FMLA-protected).

(d) Unforeseeable leave. When the need for FMLA leave is unforeseeable and an employee fails to give notice in accordance with § 825.303, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

(e) Waiver of notice. An employer may waive employees' FMLA notice obligations or the employer's own internal rules on leave notice requirements. If an employer does not waive the employee's obligations under its internal leave rules, the employer may take appropriate action under its internal rules and procedures for failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the rules are not inconsistent with § 825.303(a).

Notes of Decisions
Cited in 26 cases (5 in the last 5 years), 1996–2024 · leading case: Kaylor v. Fannin Reg'l Hosp., Inc., 946 F. Supp. 988 (N.D. Ga. 1996).
Sort: Relevance Newest Treatment
Kaylor v. Fannin Reg'l Hosp., Inc., 946 F. Supp. 988 (N.D. Ga. 1996). · cites it 3× “See 29 C.F.R. § 825.304 (c). Plaintiff’s argument is without merit.”
Jackie Killian v. Yorozu Auto. Tennessee, Inc., 454 F.3d 549 (6th Cir. 2006). “29 C.F.R. § 825.304 (a). The regulations also provide: It may be necessary for an employee to take more leave than originally anticipated.”
Wheeler v. Pioneer Developmental Servs., Inc., 349 F. Supp. 2d 158 (D. Mass. 2004). · cites it 2× “” 29 C.F.R. 825.304(b). Once an employee gives notice, and the circumstances suggest that the employee’s request may involve FMLA leave, it becomes the employer’s obligation to inquire further in order to determine if the requested leave qualifies for FMLA protection.”
Marrero v. Camden Cnty. Bd. of Soc. Servs., 164 F. Supp. 2d 455 (D.N.J. 2001). “29 C.F.R. § 825.304 (c). See also, Roger v.”
Everett Srouder v. Dana Light Axle Mfg., 725 F.3d 608 (6th Cir. 2013). “Moreover, 29 C.F.R. § 825.304 (e) provides: An employer may waive employees’ FMLA notice obligations or the employer's own internal rules on leave notice requirements.”
Jadwin v. Cnty. of Kern, 610 F. Supp. 2d 1129 (E.D. Cal. 2009). “Third, even assuming Plaintiffs notification of his need for his first FMLA leave was untimely, the County arguably waived any objection to its timeliness.”
Reginald Gilliam v. United Parcel Serv., Inc., 233 F.3d 969 (7th Cir. 2000). “29 C.F.R. § 825.304 (b). Kinsey did not do this — did not even insist that Gilliam wait out the 10 days required by the collective bargaining agreement.”
Rodriguez v. Ford Motor Co., 382 F. Supp. 2d 928 (E.D. Mich. 2005). “” 29 C.F.R. § 825.304 (a). Defendant Ford knew Plaintiff had an appointment with his treating physician on Wednesday, March 7, 2001, two days after Plaintiff abruptly left work.”
Anthony Shelton v. the Boeing Co., 702 F. App'x 567 (9th Cir. 2017). “*569 Finally, there is no merit to Shelton’s argument that 29 C.F.R. § 825.304 (e) mandates that an employer that grants FMLA leave automatically waives its ability to discipline an employee for refusal to comply with attendance policies.”
Peeples v. Coastal Off. Prods., Inc., 203 F. Supp. 2d 432 (D. Maryland 2002). “, § 303(b) notice) is not conditioned upon a showing that “the employee has actual notice of the FMLA notice requirements,” 29 C.F.R. § 825.304 (c) 11 , through the employer’s posting of a notice of FMLA rights in the workplace.”
Moore v. GPS Hosp. Partners IV, LLC, 383 F. Supp. 3d 1293 (U.S. Cir. Ct. 2019). “" 29 C.F.R. § 825.304 (e). It would seem difficult to discriminate in the enforcement of notification rules unless the same rules apply to both FMLA leave and non-FMLA leave.”
Holloway v. Dist. of Columbia Gov't, 9 F. Supp. 3d 1 (D.D.C. 2013). “29 C.F.R. § 825.304 (a), (b) (2008). Here, Holloway alleges that he and Pringle asked Boyd in March 2006 to grant him leave to enter a substance abuse treatment program, and that Pringle later *8 informed Boyd that Holloway had enrolled in a long term substance abuse program and…”
Show all 26 citing cases →
— 29 C.F.R. § 825.304(b) — 1 case
Wheeler v. Pioneer Developmental Servs., Inc., 349 F. Supp. 2d 158 (D. Mass. 2004). “” 29 C.F.R. 825.304(b). Once an employee gives notice, and the circumstances suggest that the employee’s request may involve FMLA leave, it becomes the employer’s obligation to inquire further in order to determine if the requested leave qualifies for FMLA protection.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.