On May 5, 2009, the Department of Labor published Opinion Letter FMLA2009-1A (the opinion letter is actually dated January 6, 2009). The opinion letter states that, under the new FMLA regulations, employers can require employees requesting FMLA leave to follow the employer's normal call-off procedures.  

The opinion letter recognized that both the 1995 FMLA regulations and older opinion letters had generated confusion regarding how much notice an employee must provide when the employee learned of the need for FMLA leave less than 30 days in advance. Specifically, the DOL observed that it was not clear (a) whether employers could require employees requesting FMLA leave to follow normal call-off procedures, and (b) whether such employees had a two day grace period from the time they became aware of the need for leave to request such leave.  

The opinion letter states that under the new FMLA regulations, an employee requesting FMLA leave less than 30 days in advance must notify the employer "as soon as practicable," which means that, unless unusual circumstances are present, the employee must follow the employer's normal call-off procedures. If unusual circumstances prevent the employee from complying with the normal call-off procedures, the employee still must call off as soon as he or she can practicably do so.  

Accordingly, based on the new opinion letter, if an employee fails to follow an employer's normal call-off procedures and there were no unusual circumstances that reasonably prevented the employee from adhering to those procedures, the employer may deny FMLA leave for the absence and apply its normal attendance rules to the employee.