Intermittent leave has always been a bugaboo for HR managers, and the new regulations do offer some clarifications. Here are Alvarez's thoughts on that and other FMLA issues.
Alvarez is national coordinator of law firm Jackson Lewis's Disability, Leave & Health Management Practice Group.
Employers have been tormented by the old reg's requirement to account for intermittent leave in small increments. Under the new regs, the employer must account for the intermittent or reduced schedule 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 provided it is not greater than one hour.
However, the final regulations clarify that employers are not required to account for FMLA leave in increments of 6 minutes or even 15 minutes simply because their payroll systems are capable of doing so.
In another welcome clarification, when the nature of the workplace makes it physically impossible for employees to start work midway through the shift, the entire shift may be designated as FMLA leave, says Alvarez. The DOL, however, intends the exception to be applied narrowly, he notes. DOL gives examples such as a flight attendant, train conductor, or a laboratory technician whose workplace is inside a clean room that must remain sealed for a certain period of time.
Another clarification deals with calculating an employee's leave entitlement when the employee works a schedule that varies from week to week. Under the new rule, employers will use a weekly average over the 12 months preceding the leave period, rather than just the prior 12 weeks, as required under the current rule.
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The DOL has clarified that missed overtime may be counted against the employee's FMLA leave entitlement if the employee would otherwise have been required to report for duty except for the taking of FMLA leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize 8 hours of FMLA-protected leave out of the 48-hour workweek, or 1/6 of the workweek.
However, the regs state, voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee's FMLA entitlement.
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