Calculating Intermittent FMLA Time

Managing leave in accordance with the Family and Medical Leave Act (FMLA) can be burdensome. Intermittent FMLA leave in particular gets a bad rap because of the hassle of recordkeeping. Employers must be sure to accurately account for the time taken off from work, and they also must calculate the allowed time correctly—keeping in mind that the allowed number of hours won’t be the same for every employee.

When Could the Allowed Number of Hours Be Different?

If only intermittent FMLA leave were as simple as multiplying 40 hours a week by 12 weeks: 480 hours. Simple. Easy. Done. Unfortunately, it’s not always that simple, and it can be easy to make the mistake of giving employees more or less time off than they’re allowed—which can cause even more headaches later.

The key to remember here is that the intermittent FMLA time allowed should be based on the employee’s standard workweek. As such, if the employee routinely works a 40-hour week—no more, no less—and has done so pretty consistently for the last year, then it’s probably fine to use the calculation above.

But for a salaried employee or an employee who routinely works overtime—say, for example, one employee who routinely works a 50-hour week—is the allotment still just 480 total hours? The answer is no—his or her FMLA leave would be the equivalent, in total hours, of what he or she would have worked during that 12-week period. In this case, 50 hours multiplied by 12 weeks would equal 600 hours of leave due. (Conversely, if an employee qualifies for FMLA leave but routinely works less than 40 hours per week, then the allotment of intermittent FMLA leave time would be less than 480 hours.)

Some other special scenarios:

• what about employees who work a different schedule every week, with variation to the point that a normal workweek is unknown? For those employees, the employer should do a calculation to determine the average hours worked per week over the past year. When calculating this average, the employer should include any type of regular leave hours taken in the past year as well (PTO, vacation, sick leave, etc.).
• If an employee has recently changed schedules PRIOR TO discovering the need for FMLA leave, then the new schedule should be used, not the old one.
• If overtime is required of an employee who is taking intermittent leave OR if an employee is unable to work required overtime due to his or her health condition, then the overtime hours can count against the employee’s FMLA leave allotment–even if the employee still works 40 hours that week. This is only true if the missed overtime was mandatory, not voluntary.

Must It Be Calculated in Hours?

All of these considerations bring up another important point: must the leave be calculated in full hour increments? The short answer is no. But the longer answer is a bit more involved.

Basically, the leave must be calculated in a way that meets two requirements:

1. It must be in the shortest increment allowed for any other type of leave (or less),

and

2. it cannot be longer than single hour increments, even if you don’t allow single hour increments for other leave types.

So, if your organization requires all vacation and sick days to be taken at least a half day at a time, then according to the first requirement, intermittent FMLA leave cannot be calculated in amounts longer than that, such as a full day. However, half-day increments wouldn’t satisfy the second requirement; leave cannot be calculated with increments longer than one hour. Therefore, an employer in this scenario would need to allow intermittent FMLA leave to be taken in 1-hour increments.

In another scenario, let’s say an employer allows any and all types of PTO or leave to be taken in increments as small as 15 minutes, which is what their time clock rounds to. Since that is the shortest increment allowed for other types of leave, it also must be allowed for intermittent FMLA leave. Both of the requirements are satisfied, since the increment is less than 1 hour.

One exception to note here: for employees who cannot take partial days or shifts off from work, it is permissible to require the entire day or shift to be taken as FMLA leave. This is often a concern in the transportation industry, in which the employee cannot complete just a portion of a shift (e.g., railroad conductors and bus drivers).

For more information, the Department of Labor has helpful guides: http://www.dol.gov/whd/regs/compliance/whdfs28i.pdf.