Alexis, Of Counsel at the Kinaga Law Firm in Los Angeles, offered his FMLA tips at BLR’s Advanced Employment Issues Symposium held recently in Las Vegas.
Two Keys to Leave Calculations
Alexis says that there are just two questions to answer in order to calculate intermittent or reduced-schedule FMLA leave.
- What is the employee’s regular workweek schedule?
- What percent of the regular workweek constitutes leave?
Examples—Regular Full-Time
Employee A
- Works 5 days, 40 hours a week.
- Takes Fridays off as intermittent leave for 3 weeks.
- Each week, the employee has used one-fifth of a week of FMLA leave.
Employee B
- Works 5 days, 40 hours a week.
- Takes 4 hours off each day for 2 weeks.
- The employee has used half a week of leave each week, or 1 week of leave in total.
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Examples—Part-Time or Variable
Employee C:
- Works 30 hours a week.
- Takes 2 hours of leave each day for 3 weeks.
- Each week, the employee has used one-third of a week of FMLA leave.
Employee D:
- Week One: five 8-hour days; Week Two: four 10-hour days (Monday–Thursday).
- Takes Monday off both weeks.
- Employee has used one-fifth of a week of FMLA leave in Week One.
- Employee has used one-fourth of a week of FMLA leave in Week Two.
What About an Unpredictable Schedule?
If the employee’s schedule fluctuates from week to week and the employer cannot determine with certainty how many hours the employee would work in the week the employee is taking leave, the employer must use a weekly average.
The average is based on weeks in the 12-month period measured from the date of commencement of the leave. The weekly work hours include all hours the employee took any leave. You don’t reduce the time by holidays or other leave time, Alexis says.
What About Overtime?
Alexia offers the following overtime scenario:
- Employee is scheduled to work 8 hours of overtime (OT) for 2 weeks.
- Employee is scheduled to work 48 hours each week.
- Employee has severe depression and anxiety.
- Employee’s doctor says employee cannot work the extra OT hours for the 2 weeks.
- Employee works 40 hours each week.
Has the employee used any FMLA time?
Yes, in this case, says Alexis. But overtime is tricky. If the OT hours are required by the employer of that employee, OT hours not worked count as FMLA leave. However, if the employee had previously voluntarily requested OT hours for those 2 weeks, OT hours not worked do NOT count.
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Do You Have to Use Fractions?
No, says Alexis, employers do not have to use fractions. As a matter of fact, most employers track in actual hours, not fractions.
What About Compensating Exempt Employees?
Compensating exempt employees on intermittent or reduced-schedule FMLA leave is a different story.
FMLA leave is generally unpaid, says Alexis, on the theory that employees are less likely to engage in fraud.
Salaried executive, administrative, professional, or computer employees given unpaid FMLA leave do not lose the Fair Labor Standards Act (FLSA) exemption because the employer docks their pay for the leave. (Normally, exempt pay should not be docked on an hourly basis.)
To calculate the reduction in pay:
Convert the employee to hourly status during the FMLA leave period or (better) make appropriate adjustments to salary on the basis of the employee’s:
- Regular workweek compared to the new workweek
- Hourly rate
To determine the hours or percent of week missed, the simplest option is to track exempt employee’s hours, but since most employers don’t track exempt employee’s hours, you’ll typically have to sit with the employee to determine the average hours. Once you have done so, signify your agreement in writing, Alexis says.
Minimum Increments of FMLA Leave
Employers must use an increment no greater than the shortest period of time used to account for use of other forms of leave provided that:
- It is not greater than 1 hour.
- The employee’s FMLA entitlement may not be reduced by more than the time taken.
Meaning, if an employee leaves during the last half-hour of his or her shift for an FMLA-covered event, the employee may not be “docked” a full hour of FMLA leave (even if this is the shortest period of time that the employer uses to account for use of other forms of leave).
One Very Limited Exception
There is one limited exception to the rule about docking more hours than were taken, and that is when there is a “physical impossibility” to work. In that case, the entire absence may be counted toward FMLA usage.
For example, say a flight attendant has a medical appointment during the time he or she is scheduled to be on a flight. The entire absence may be counted toward FMLA. Another example would be a laboratory employee who is unable to enter or leave a sealed “clean room” except at certain times.
But this is a narrow exception, says Alexis. It does not apply where it is merely inconvenient for the employee to be missing.
In tomorrow’s Advisor, your rights to transfer an employee to another job during FMLA, plus an introduction to BLR’s popular “FMLA Bible.”
So “physical impossibility” refers more the impossibility of being physically present than being physically incapable?
I have an employee looking for clarification. He left work mid-shift due to an asthma attack. His certification allows for 1 to 3 days per month. The company is denying the request because the certification does not break it down into hours increments. The employee believes that his partial day should be considered as 1 occurrence for 1 day and thus be covered as FMLA. What is your understanding of this ?