If you are tracking FMLA leave THIS WAY, you may be doing it WRONG!


Thank you for indulging me a day off from blogging yesterday. It’s tough to bounce right back when a referee rips your heart out of your chest with a ridiculous penalty call late in the fourth quarter of arguably the best Super Bowl game of all time.

At least I’m not salty about it.

Speaking of serious health conditions, let’s piggyback on Friday’s FMLA blog post and talk about calculating FMLA leave.

The FMLA provides eligible employees up to 12 workweeks of unpaid leave a year. Does this mean eligible employees get a bank of 480 hours of leave in the 12-month period?

Well, it depends.

If an employer regularly schedules an employee to work 40 hours per week, that employee gets 480 hours of FMLA leave per 12-month period.

Last week, U.S. Department of Labor released this opinion letter about calculating FMLA leave for employees that generally work more than eight hours a day. If the employer schedules the employee to work more than 40 hours per week, the employee is entitled to more than 480 hours of FMLA leave per 12-month period.

Thus, the focus is always on the workweek, and the employee’s “normal” workweek (hours/days per week) before the start of FMLA leave is the controlling factor for determining how much leave an employee is entitled to use.

For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.

Further, the DOL takes the position that employees who would usually be required to work more than eight hours a day but can’t because of an FMLA-qualifying reason may work a reduced schedule and use FMLA leave for the remainder of each shift.

The employer may count the hours that it would have required the employee to work against the employee’s FMLA leave entitlement. But, the employee may continue to use FMLA leave indefinitely as long as they continue to be eligible, have a qualifying reason for leave, and have not exhausted their leave entitlement. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.

Moreover, an employee who exhausts their FMLA leave entitlement by working a reduced schedule would be entitled under the FMLA to reinstatement to the same or an equivalent position, with equivalent pay and benefits, to what the employee held when the leave began. Still, they would no longer be entitled under the FMLA to work less than the normal schedule of more than eight hours a day.

“Doing What’s Right – Not Just What’s Legal”
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