Sarasota, FL (WorkersCompensation.com) – Employees covered by the federal Family Medical Leave Act are entitled to 12 weeks of leave per year, or 26 weeks in the case of military caregiving. Figuring out exactly how much time the employee has available for leave should be relatively simple, right? Well, what if the employee doesn’t work a typical 40-hour work week? What if there is overtime involved? What about holidays? And what about employees with varying schedules?
As the employer, it might seem that sometimes it would make things easier – and be more beneficial for the employee – to just not count the time-off against the person’s entitled leave. But that’s a bad idea.
“From the Department of Labor’s point of view, there’s often this idea ‘I don’t have to count it against the employee’s leave entitlement, so I’m helping the employee,’” said Christine Schott, senior advisor to the DOL’s Wage and Hour Division’s Division of FMLA and Section 14(c). “Our perspective always is, ‘you don’t have that option.’”
As Schott explained, it actually protects the employee – and the employer – to count the time as FMLA. Schott was among the speakers explaining the nuances of the FMLA during a recent webinar produced by the Disability Management Employer Coalition.
The Basic Math
Feb. 5 was the 29th anniversary of the FMLA. The law applies to public employers as well as private organizations with at least 50 employees. It allows employees to take time off for their own or a family member’s serious health condition, or the birth/adoption of a child. While unpaid, the FMLA ensures the employee’s job is protected and his health insurance and other benefits are continued.
The 12 weeks per 12 months FMLA leave entitlement can be tricky to calculate. The leave is based on the employee’s workweek averaged over a 12 month period – before the FMLA leave starts.
“That’s very important because if an employee’s typical schedule is Monday through Saturday, their workweek entitlement is a 6-day workweek,” Schott said. “If [the employee works] 50 hours per week, he is entitled to 50 hours a week for 12 weeks … someone who averages 32 hours per week, will have that many hours [times 12 weeks] of leave available.”
Unused leave does not carry over from year to year. Also, the employee does not accrue protected FMLA leave at any particular hourly rate.
FMLA leave can be taken on a continuous – uninterrupted – basis or intermittently. An exception is for the birth/adoption of a new child, where the leave must be taken continuously unless the employer agrees to intermittent leave.
Determining intermittent leave can be a bit complex. It is based on the proportion or fraction of time on leave versus the employee’s ‘normal’ workweek. Fractions can be converted to the hourly equivalent as long as the conversion reflects the employee’s total normally scheduled hours.
An example of intermittent leave is an employee who works 8-hours-a-day, five days a week. If he works 6 hours a day as his intermittent leave, that would count as one-quarter of a week of FMLA leave.
Variable Hours, Holidays
There are many employees who don’t work a typical number of hours per week. Determining their leave entitlement should be based on a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period – including any hours for which the employee took leave of any type.
Holidays are more complicated. If the leave is for an entire week during which a holiday occurs, the employee is charged with a full week. “The fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave,” the DOL explains in its regulations. “However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.”
‘David’ is an eligible employee recovering from surgery he underwent Monday morning. He went home on Tuesday and completed his recovery on Friday two weeks later. An employer-granted holiday occurs during week two.
In this case, he used two full, continuous weeks of leave – including the holiday. “For FMLA purposes … when crediting that day for FMLA he has the protections of the FMLA for that day,” Schott said.
‘Tasha’ is an eligible, pregnant employee who normally works 8 hours per day, Monday through Friday. Her employer has granted all employees a paid holiday on Columbus Day. On the Wednesday morning of that same week, she is directed by her physician to stay on bedrest for the remainder of that week and all of the next week. In her case, she took 1 and 3/5 weeks of leave under the FMLA.
Calculating the amount of leave available for someone who works overtime requires careful treading. Basically, it goes to an employee’s average schedule. An employee who does not normally have OT as a requirement would not need to use up his FMLA leave against it.
“For example, if you are out on leave, say for a new child, and there’s voluntary OT during one of those weeks,” Schott said, “that employee does not have to take additional hours of leave from the OT, which would have been voluntary.”
However, an employee who works one Saturday each month will have that built into his entitlement amount. Those Saturday hours would be included in his typical workweek hours.
One way to think of it is, if you didn’t put it in, you can’t take it out.
“When an employee is missing time for an FMLA reason, if you are going to deduct the time from his entitlement, you had to have factored in the fact that they were supposed to work that time to start with,” said Daris Freeman, AVP and Unum Legal Counsel. “For example, an employee works 40 hours a week, and you’ve been asking them to work every other Saturday. If you only give them 40 hours [for FMLA leave] but they are calling out every other Saturday, you’re taking 8 hours a week from their entitlement.”
Without properly figuring in the hours an employee is required to work, an employer might force the person to use up their FMLA leave too soon. A person who works 40 hours a week is entitled to 480 hours of FMLA leave.
“Say if you require them to work 10 hours of OT every weekend,” Freeman said. “If they called out every weekend shift, over 48 weeks – so less than a year in a 12 month period – at 10 hours, 48 weeks, so 480 hours – you will have exhausted their FMLA entitlement even though they literally showed up to work every Monday through Friday 40 hours a week.”