It’s one thing to grasp individual Family and Medical Leave Act (FMLA) rules, but another thing entirely to apply them in the real world. This article series addresses some of the most confusing real world problems. Here we’ll focus on managing the duration of FMLA leave and limits on intermittent and reduced schedule leave.
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Reasonable Efforts
The FMLA regulations state that employees who take intermittent leave for planned medical treatment have an obligation to make a reasonable effort to schedule such treatment so as to not disrupt unduly the employer’s operations. The previous version of the regulations had said only that the employee had to “attempt” to do so.
Tracking
The FMLA regulations changed the way in which employers are required to track intermittent and reduced schedule leave. Under the FMLA regulations, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave. However, the increment of time may not be greater than 1 hour.
Leave Taken
The FMLA regulations also clarify that an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. So, for example, if an employee leaves during the last half-hour of his or her shift for an FMLA-covered event, the employee may not be docked a full hour of FMLA leave (even if this is the shortest period of time that the employer uses to account for use of other forms of leave) (29 CFR 825. 205).
Physical Impossibility Exception
The FMLA regulations also place a limit on intermittent leave when it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work midway through a shift. This might occur in situations such as when a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed “clean room’’ during a certain period of time.
In these situations, the regulations say that the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement. This exception is applied narrowly, and only when an employee is physically unable to enter the worksite midshift.
Varying Increments
If an employer accounts for use of leave in varying increments at different times of the day or shift, the employer may also account for FMLA leave in varying increments. However, the increment used for FMLA leave may not be greater than the smallest increment used for any other type of leave during the period in which the FMLA leave is taken. If an employer accounts for other forms of leave use in increments greater than 1 hour, the employer must account for FMLA leave use in increments no greater than 1 hour.
The FMLA regulations allow that an employer may account for FMLA leave in shorter increments than are used for other forms of leave. The U.S. Department of Labor provides the following example:
Example: An employer that accounts for other forms of leave in 1-hour increments may account for FMLA leave in a shorter increment when the employee arrives at work several minutes late, and the employer wants the employee to begin work immediately. Such accounting for FMLA leave will not alter the increment considered to be the shortest period used to account for other forms of leave or the use of FMLA leave in other circumstances. In all cases, employees may not be charged FMLA leave for periods during which they are working (20 CFR 825.205(a)).
Transfer to an Alternate Position
You may choose to temporarily transfer the employee to an available alternative position for which the employee is qualified and which better accommodates recurring periods of intermittent or reduced schedule leave than does the employee’s regular position.
Temporary transfer is only permitted if an employee needs intermittent leave or leave on a reduced leave schedule that is foreseeable based on planned medical treatment for the employee, a family member, or a covered service member, including during a period of recovery from one’s own serious health condition, a serious health condition of a spouse, parent, son, or daughter, or a serious injury or illness of a covered service member, or if the employer agrees to permit intermittent or reduced schedule leave for the birth of a child or for placement of a child for adoption or foster care.
The alternative position must have equivalent pay and benefits, but does not have to have equivalent duties. The employer may increase the pay and benefits of an existing alternative position, to make them equivalent to the pay and benefits of the employee’s regular job.
You may also transfer the employee to a part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is medically necessary. For example, an employee desiring to take leave in increments of 4 hours per day could be transferred to a half-time job, or could remain in the employee’s same job on a part-time schedule, paying the same hourly rate as the employee’s previous job and enjoying the same benefits.
You may not eliminate benefits which otherwise would not be provided to part-time employees; however, you may proportionately reduce benefits (e.g., vacation leave) where the employer’s normal practice is to base such benefits on the number of hours worked.
Unlike a “light-duty” assignment, a transfer to an alternative position does not require the employee’s consent. Beware, however, if the employee is also protected under the Americans with Disabilities Act and can do his or her existing job with reasonable accommodation, you may not be able to transfer him or her.
In the next installment, we’ll discuss managing intermittent leave and how it applies to fluctuating work schedules.