Intermittent FMLA—Top HR Headache?

What’s an Hour?

The first step in dealing with reduced and intermittent leave under the FMLA is to calculate how many “hours” of leave an employee is entitled to. This calculation is based on an employee’s regular workweek. For example, an employee who regularly works a 5-day week and 8 hours a day, is entitled to 480 hours of leave: (5 days x 12 weeks) x 8 hours. Similarly, an employee who works a 3-day week and 8 hours each day is entitled to 288 hours of leave: (3 days x 8 hours x 12 weeks).

Establishing the number of hours worked each week for exempt employees may be difficult where the employer does not maintain such records, especially since it is not unusual for exempt employees to work more than 40 hours each week.

In these cases the burden of proof is on the employer to disprove the employee’s record of the number of hours worked by the employee. Employers may wish to obtain a statement from exempt employees before an intermittent or reduced leave, setting forth their regular workweek and hours for the preceding 12 weeks.

Variable Schedules

If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 weeks prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would normally be used for calculating the employee’s leave entitlement.

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Intermittent or Reduced Schedule Leave

If an employee takes leave on an intermittent or reduced schedule leave, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled. For example, if an employee who normally works 5 days a week takes off 1 day, the employee would use one-fifth of a week of FMLA leave. Similarly, if a full-time employee who normally works 8-hour days works 4-hour days under a reduced leave schedule, the employee would use one-half of a week of FMLA leave each week.

Where an employee normally works a part-time schedule, the amount of leave to which an employee is entitled is determined on a pro rata or proportional basis by comparing the new schedule with the employee’s normal schedule. For example, if an employee who normally works 30 hours per week works only 20 hours a week under a reduced leave schedule, the employee’s 10 hours of leave would constitute one-third of a week of FMLA leave for each week the employee works the reduced leave schedule.

An employer may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s normally scheduled hours.

Changes in Schedule

If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA and before the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making the leave entitlement calculation.

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Overtime Hours During FMLA Leave

DOL’s final 2009 FMLA regulations address the issue of overtime hours and the 12-week calculation. According to the regulations, if an employee would normally be required to work overtime but is unable to do so because of an FMLA-qualifying reason, the hours that the employee would have been required to work may be counted against the employee’s FMLA entitlement. In such a case, the employee is using intermittent or reduced schedule leave.

Example:

An employee is normally 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 use 8 hours of FMLA-protected leave out of the 48-hour workweek (8 divided by 48 equals 1/6 workweek).

However, voluntary overtime hours that an employee does not work due to a serious health condition may not be counted against the employee’s FMLA leave entitlement.

In tomorrow’s Advisor, special rules for spouses employed by the same employer, and an introduction to the guide that HR managers are calling the “FMLA Bible.”

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