FMLA hassles never seem to end. Some of the most confusing issues revolve around holidays, overtime, and the 12-month method. Today’s Advisor will clarify these tricky points.
What Happens When a Holiday Occurs During FMLA Leave?
The fact that a holiday may occur within the week taken as FMLA leave has no effect, and the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than 1 week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
Similarly, if the employer’s business activity has temporarily ceased, and employees are not expected to report for work for 1 or more weeks (e.g., a school closing of 2 weeks for the Christmas/New Year holiday, or the summer vacation, or an employer closing a plant for retooling or repairs), the days on which the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.
How About Unworked Overtime Hours?
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. 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 use 8 hours of FMLA-protected leave out of the 48-hour workweek or 1/6 of a workweek (8 divided by 48 equals 1/6 workweek).
Note that 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.
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Calculating and Tracking the 12-Month Period
DOL regulations allow employers to use any one of four different methods to determine the 12-month period for counting and tracking leave. However, the method selected must be used consistently and uniformly for all employees nationwide.
If a state FMLA law requires a particular method, the employer must then comply with that law, but it may select another method for its employees in other states. If an employer fails to select one of the options for measuring the 12-month period, the option that provides the most beneficial outcome for the employee is used.
Methods of Calculation
The allowable methods for calculating the FMLA 12-week limit are:
- The calendar year;
- Any fixed 12-month period (such as a fiscal year, year required by state law, or year that begins with an employee’s anniversary date);
- A 12-month period, measured forward, that begins on the date an employee first starts the FMLA leave; or
- A "rolling" 12-month period, measured backward, from the date an employee last used any FMLA leave.
The first two share the advantage that recordkeeping and administration are easier. You use the same year for all employees, and you may link easily with other systems, such as attendance, that are on the same schedule.
The third alternative is less easy to administer because each employee may have a different year.
However, the factor that sways many employers is that the first three methods allow "stacking" of leave time. For example, employees theoretically could take 24 weeks in a row—the last 12 weeks of 1 year and the first 12 weeks of the next year. The fourth method does not permit stacking; however, the fourth method is generally more difficult to administer.
Changing the 12-Month Method
If you wish to change to another method of calculating the 12-month period, you must give at least 60 days’ notice to all employees, and the transition must take place so that employees retain the full benefit of 12 weeks of leave under the method that affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the FMLA’s leave requirements.
Calculating the 12-Week Leave Period
A "week" is determined by the 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.
Where leave is taken on an intermittent or reduced work schedule basis, it is important to determine 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 multiplied by 12 weeks). An employee who works a 3-day workweek is entitled to only 36 days’ leave in a 12-month period (3 days multiplied by 12 weeks).
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The Family and Medical Leave Act Compliance Guide includes:
- Leave law overview
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- Practical guidance on implementing all aspects of the new rules
- Analysis of federal and state laws, what they require, and how they interact
- Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers’ comp, and military leave
- Recordkeeping and reporting requirements
- Reasonable accommodation
- Sample policies and forms
- Plus a quarterly newsletter and updates to make sure you stay in compliance as any changes come about
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