Congressional intent clearly indicates that the responsibility to give notice abides with the employee, and with that, the accountability for fulfilling the notification requirement. DOL has stated, "[A]s this is an affirmative responsibility of the employee it would be inappropriate to require the employer to show any prejudice resulting from an employee's failure to provide adequate notice."
Another organization believes strict interpretation of the regulation would result in undue hardships for employees in circumstances where leave must be taken sooner than 30 days after the date of notification, without regard to whether the need for leave is foreseeable. The commenter recommended mandatory exceptions from the waiting requirement in circumstances where leave cannot reasonably be delayed for 30 days.
We believe the regulations already accommodate situations in which 30 days notice for unforeseen medical emergencies is not possible. In cases where leave is foreseeable, we believe it is appropriate to require an employee to provide notice 30 days prior to the date leave is to begin or such notice as is practicable. Therefore, the regulations have not been revised.
A commenter requested that employees be required to keep supervisors informed of their intentions on the kinds and amounts of leave planned if extended absence is likely either before or after beginning FMLA leave. The regulations require a 30-day notice of intent to take FMLA leave and allow an agency to require an employee to report periodically on his or her status and intention to return to work. Also, the regulations allow agencies to require periodic recertification of a serious health condition. We do not believe any additional requirements are necessary.
Section 630.1206(c) requires that if the need for leave is not foreseeable and an employee cannot provide 30 days notice, he or she must provide notice within a reasonable period of time appropriate to the circumstances involved. One commenter suggested that a time limit for such notification be established similar to the time limit set by DOL--i.e., 1 or 2 working days after learning of the need for leave. Agencies are responsible for the administration of the FMLA and may establish such time limitations in their agency policies. Therefore, the regulations have not been changed.
An agency requested guidance on the appropriate documentation to support a request for FMLA leave for a birth, adoption, or foster care. Section 630.1206(f) has been revised to permit agencies to require an employee to provide evidence that is administratively acceptable to the agency in support of his or her intent to use FMLA leave for the birth of a child or placement of a child for adoption or foster care.