How many hours of intermittent leave is an employee entitled to if they typically only work 32 hours a week? How does overtime factor in? What if an employee works a different number of hours every week—how many hours of intermittent leave is that person eligible to take? FMLA questions are seldom simple, but Marylou V. Fabbo outlined answers to these questions and more after a recent CER webinar. Here are some of the participant questions surrounding the ever-confusing topic of calculating intermittent leave allocations.
Q. Does 12 weeks always equate to 480 hours? In other words, do employees always get 480 hours of intermittent leave?
A. No. Using 480 hours is based on a 40-hour average workweek. If the employee only works 35 hours per week, the employer should multiply that by 12 to get their allotment. It goes by what they work, and could be different for different people.
Q. When you approve the FMLA intermittent leave, do you identify the workweek average at that time? Or when does this calculation happen?
A. Typically, it’s best to do it the day the leave is scheduled to begin. This is a great question because average working hours can change between the time the leave is approved and the time it begins and employers need to act accordingly. However, there’s no clear-cut answer, so you need to treat employees fairly. When in doubt, err on the side of giving the employees the most benefit.
Q. What about when an employee is frequently moved to different crews? How do you track the FMLA time being used? For example, what if they work different hours every week, depending on which group they are working with?
A. Take the average hours per week over the past year. That number is the “work week” in terms of how many hours constitute one week of FMLA absence. Put differently, determine the average number of hours worked per week over the last year and multiply that by 12. The answer is the total FMLA leave allowance. Any FMLA absence is then counted against this figure.
Q. If an employee works an average of 60 hours per week (including overtime), does that employee actually get 720 hours of intermittent leave time?
A. Yes.
Q. Should the hours worked be based upon total hours worked or hours paid such as vacation time?
A. Under the FMLA, only count hours worked. A paid holiday is not counted.
Q. During the webinar it was noted that intermittent FMLA leave cannot be tracked in an increment less than one hour. Does this mean that if someone has to leave 15 minutes early for an appointment, that FMLA cannot be tracked on that 15 minute increment? (This is the shortest amount of time we use for other forms of leave.)
A. You can track FMLA in smaller increments (matching the smallest amount of time used for other forms of leave), but you can never require them to take more time than they need. In other words, in this situation, if your system only tracked to the nearest hour, then you could not force the employee to take one hour of FMLA time if they only need 15 minutes. If you can track 15 minutes, then that is fine.
Q. What if a mother and daughter are both employed and are approved for intermittent FMLA for the mother’s condition—do they each get 12 weeks?
A. Yes.
For more information on calculating intermittent leave accurately and allotting the correct time for each affected employee, order the webinar recording of “Mastering Intermittent Leave: How to Correctly Apply FMLA Rules and Stop Abuse.” To register for a future webinar, visit CER webinars.
Attorney Marylou V. Fabbo is a partner with Skoler, Abbot & Presser, P.C. and heads its litigation department. She has successfully defended employers in civil actions involving many areas of employment law, including sexual harassment, discrimination, wage and hour, FMLA, breach of contract, and wrongful discharge.