What is a "working" day under FMLA? Is it business days? or days that associate was scheduled to work?

Question

FMLA states an emploee must notify the company of their need for FMLA within 2 "working" days of their absence. I have an employee that missed a Friday. He was then laid-off for 1 week. Is he required to notify the company within two days of his return to work, or the 2nd business day (while he was laid-off)........?

Answer 1

Business days. See Title 29 of the US Code of Federal Regulations, Part 825.302, which says:

"(a) An employee must provide the employer at least 30 days advance notice before FMLA leave is to begin if the need for the leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment for a serious health condition of the employee or of a family member. If 30 days notice is not practicable, such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency, notice must be given as soon as practicable. For example, an employee's health condition may require leave to commence earlier than anticipated before the birth of a child. Similarly, little opportunity for notice may be given before placement for adoption. Whether the leave is to be continuous or is to be taken intermittently or on a reduced schedule basis, notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.
(b) ``As soon as practicable'' means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. For foreseeable leave where it is not possible to give as much as 30 days notice, ``as soon as practicable'' ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee."

If you have more questions, you can call the US Department of Labor's Wage and Hour Division (the agency that enforces the FMLA) toll-free at 1-866-4US-WAGE.