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Proposed Rule Would Change FMLA Leave Calculation and Employee Reinstatement

Update (April 13, 2012): The deadline for submitted comments about the proposed rule change has been extended until April 30, 2012

The U.S. Department of Labor (DOL) is proposing a rule change that would affect how employers calculate leave time under the Family and Medical Leave Act (FMLA) and how employees are to be reinstated after FMLA leave.

If the proposed rule is finalized, employers will be required to calculate FMLA leave using the shortest increments they use to track work time. This is a return to the way the rules were written before a 2009 change that allowed employers to track FMLA leave the same way they track other forms of leave. For example, under the current rule an employer can calculate leave time in one-hour increments if it requires employees to take other forms of leave in one-hour increments — even if the employer uses shorter increments to calculate work time. Under the new rule, if an employer tracks work time in shorter increments, it will have to track FMLA leave in those increments.

In a notice of “frequently asked questions,” the DOL said its enforcement experience showed confusion over the provision. “In response to the apparent confusion, the Department proposes to delete this provision of the regulations in favor of the more general principle of calculating FMLA leave usage using the employer’s shortest increment of leave at any time.”

The DOL also wants to clarify the rules on the “physical impossibility” provision. The DOL’s frequently asked questions note that the 2009 regulations added a provision permitting an employer “to delay reinstatement where it is physically impossible for the employee to return to his or her job in mid-shift (for example, if the employee works in a locked clean room).” The DOL says it is “concerned that some employers may have misinterpreted the concept of physical impossibility to apply to circumstance where it is merely inconvenient to reinstate the employee mid-shift.”

Anyone wishing to comment on the proposed rule should do so on or before April 16, 2012.