Can employers require employees to make up time they miss for FMLA leave?

The Family and Medical Leave Act guarantees eligible employees up to 12 workweeks of leave in a 12-month period for a qualifying reason, such as taking care of a parent with a serious health condition. Employers, on the other hand, cannot interfere with employees’ FMLA rights.

But, are there circumstances in which an employer can provide FMLA leave to an eligible employee and then require them to work extra time — maybe a Saturday — to make up the time they missed?

In this decision I read last night, the plaintiff took intermittent FMLA leave to care for the plaintiff’s father with Alzheimer’s. It appeared — although it wasn’t entirely clear from the record — that if the plaintiff used intermittent FMLA and deviated from the usual midweek work schedule, the plaintiff would then have to come in and work on Saturday.

The court concluded that this policy did not violate the FMLA because the defendant never denied the plaintiff any FMLA leave. The court cited a series of cases in which courts reasoned that as long as employers don’t impede the use of FMLA leave when needed, they have not denied any FMLA benefits and can require those employees to make up the missed time.

Here, even if the defendant scheduled the plaintiff for a Saturday make-up, the plaintiff could use FMLA then if needed. Indeed, the defendant allowed the plaintiff to freely use intermittent leave whenever needed to care for dad.

The court concluded that there was no FMLA interference violation, and the plaintiff since appealed the decision to the Fourth Circuit Court of Appeals. So stay tuned for that.

I can imagine some of the arguments that the plaintiff would raise. First, requiring employees on FMLA leave to make up missed time could deter employees from requesting more leave. It may not only interfere with FMLA use, but one could also view it as retaliatory. Also, an employer may violate the FMLA by affording lesser benefits to FMLA users than employees using other forms of non-FMLA leave.

My friend, Jeff Nowak, blogged about this a decade ago — he was way ahead of his time — and shared some tips for employers:

For those employers out there that still maintain a policy that allows employees to make-up time to replace lost wages (as a result of unpaid FMLA leave), its absence/make-up policy should clearly identify that: 1) scheduled work missed as a result of FMLA leave will still be counted towards the employee’s FMLA allotment, and make-up time is allowed to compensate for lost wages (again, in the event FMLA leave was unpaid); and 2) make-up time is not required.  Employers should consider prohibiting make-up time if the FMLA leave ran concurrently with paid leave, such as sick or vacation time.

On the flip side, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges. 

Also, remember any applicable state or local law protections for employees that may exceed those afforded under the FMLA.

In other words, if you are considering having FMLA users make up the work they missed, tread very carefully and consult an employment lawyer.