This article series addresses some of the most confusing real world problems surrounding the Family and Medical Leave Act (FMLA). In the last installment, we focused on managing leave duration and the limits that can and cannot be placed on intermittent and reduced schedule leave. Here we’ll focus on managing intermittent and reduced schedule leave and how fluctuating work schedules are impacted.
An eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period. FMLA-eligible employees are also entitled to 26 workweeks of leave in a single 12-month period to care for a covered family member who is recovering from a serious illness or injury sustained during active military duty.
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), the employer should calculate the employee’s leave entitlement by determining the weekly average of the hours scheduled over the 12 months before the beginning of the leave period.
This calculation must include any hours for which the employee took leave of any type.
Establishing the number of hours worked each week for exempt employees may be difficult where the employer does not maintain such records. In these cases, the burden of proof is on the employer to disprove 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.
What’s a Week?
A “week” is determined by an employee’s regular workweek. For example, an employee who works Monday through Friday has a 5-day workweek. An employee who works Monday, Wednesday, and Friday, has a 3-day workweek.
What’s a Day?
Where leave is taken on an intermittent or reduced leave basis, it is important to ascertain the number of “days” of leave an employee may take. An employee who has a 5-day workweek is entitled to 60 days’ leave in a 12-month period: 5 days × 12 weeks. An employee who works a 3-day workweek is entitled to only 36 days’ leave in a 12-month period: 3 days × 12 weeks.
What’s an Hour?
It is important to be able to calculate how many “hours” of leave an employee on reduced leave 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 × 12 weeks) × 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 × 12 weeks) × 8 hours.
Where an employee normally works a part-time schedule or variable hours, 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 as 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 this calculation.
Think managing intermittent leave on a fluctuating work schedule was tough? In the next installment, we’ll tackle what to do if you employ spouses who decide to take FMLA leave.