Archive for the 'FMLA' Category

Substitution of paid leave

This is the last one from Malania. If I want to keep doing this I’m actually going to have to start writing these things again. Bummer.

Back again, for yet another thrilling discussion of FMLA-related leave. Are you sick of me yet? I’m sick of me. But stay tuned for a topic I think you’ll find quite useful. You see, some of you may be so lucky to work at a company that allows employees to accrue paid leave benefits, sometimes referred to as sick leave. But when, if ever, does the employee have to use this paid leave they’ve worked to save up? Turns out:

If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave.

29 CFR §825.207(a) (emphasis added).

So there you have it: a seemingly straightforward answer (for once). But let’s break this down just a little bit more before we throw in the towel, starting with the definition of “substitute.” Substitute here means that an employee’s paid leave will run concurrently with their unpaid FMLA leave: i.e. the employee will get paid for a portion of their FMLA leave, with the exact portion dependent on how many accrued paid leave days the employee has socked away.

Alright, that doesn’t sound so difficult. But you may now be wondering, when, if ever, can the employee choose not to take their paid leave? Because by this point, you’re certainly smart enough to know that there’s a legal hurdle, caveat, exception, etcetera, just waiting around the corner . . . .

So let’s look at that next. The first hurdle in determining when the employee can or must substitute paid leave for FMLA leave is figuring out whether the employee qualifies to take the paid leave in the first place:

An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy.

29 CFR §825.207(a).

This means that if the employee doesn’t meet the company’s criteria for using their paid accrued leave, the employee does not need to take it. But, in order to determine whether or not the employee can take it in the first place, you, as the employer, are required to:

[I]nform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave.

29 CFR §825.207(a).

Slightly convoluted, but the takeaway here is this: if the employee is told that they need to do something additional in order to use their paid leave and they don’t do it, the employee can still choose to take FMLA leave (assuming that the employee qualifies for it). Additionally:

If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer’s plan.

29 CFR §825.207(b).

Essentially, if your employee has accrued paid leave, you cannot take that leave away from your employee merely because they could have used it and chose not to. Conversely, if your employee did not qualify for FMLA leave and took paid time off instead, that wouldn’t count against the employee’s future entitlement to FMLA. I think for most of you know that will logically make sense: how could you take away someone’s FMLA leave entitlement if they didn’t qualify for it in the first place? But I digress.

Let’s end this discussion by examining two other scenarios that might come into play and make this calculus a bit more daunting: disability leave and worker’s compensation.

We’ll tackle the disability leave first. The biggest takeaway here is that leave taken due to a disability may be designated by the employer as FMLA leave if it meets all of the necessary criteria. However,

(d) Because leave pursuant to a disability benefit plan is not unpaid, the provision for  substitution of the employee’s accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave.

29 CFR §825.207(d).

Basically, the employee and the employer can agree to use some of the employee’s paid leave during this time if, for instance, the disability benefits do not fully cover the employee’s salary. But neither the employee nor the employer can require the use of the paid leave. Lucky for you (since I suspect you’re pretty tired of reading this by now), it’s more or less the same story with worker’s compensation: neither the employee nor the employer can require the use of paid leave, but the parties can agree to have the employee use the paid leave if the worker’s compensation doesn’t cover the employee’s full salary.

Interaction with the FLSA

Here is another one from Malaina.

Fair warning: this post will likely not be thrilling. I mean, c’mon, as lawyers, we’re paid to be boring and accurate, not to write you the latest page-turner! And while I really do try to spice things up for you every once in a while, this regulation in particular is just one of those most of us would rather not look at. Ever. However, as an employer, it should hopefully offer you some valuable guidance for handling intermittent or reduced schedule leave all while maintaining compliance with the Fair Labor Standards Act. This act, also known as the FLSA for short, interacts with and at times bumps up against FMLA policy. And as boring as it may be, what we’re about to cover is something you should be aware of.

Today, the interaction we’re going to focus on in particular is an employee’s exempt status under the FLSA, and we’re going to discuss how to ensure that an employee retains his or her exempt status even during FMLA intermittent or reduced schedule leave. But before we can get to that point, we have to first understand what it means to be “exempt” under the FLSA.

Being exempt under the FLSA means that you are exempt from minimum wage and overtime pay requirements. The most typical exemptions would be for executive, administrative, or other professional positions. These exempt individuals, rather than receiving hourly wages, receive a salary. Now, there are other hoops to jump through to qualify for one of these exemptions, but that is largely outside of the scope of this blog post. You simply need to know that some employees are exempt under the FLSA and that the goal for you as the employer is to keep them that way, even during FMLA leave.

So, how to make that happen? We start with this first premise:

(a) Leave taken under the FMLA may be unpaid. If an employee is otherwise exempt from minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA) . . . providing unpaid FMLA-qualifying leave to such an employee will not cause the employee to lose the FLSA exemption.

29 CFR §825.206(a).

Simple enough. Now, to understand this next part, we need to briefly discuss one of those FLSA hoops I (conveniently) skipped over earlier. The FLSA requires exempt employees to receive at least a fixed salary each week, with only certain very limited deductions to qualify as exempt. Yet, if someone is going on FMLA leave that is unpaid they are not getting their salary. Rather than lose their exempt status, however, the regulations provide that:

(a) [T]he employer may make deductions from the employee’s salary for any hours taken as intermittent or reduced FMLA leave within a workweek, without affecting the exempt status of the employee.

29 CFR §825.206(a).

Awesome and practical: the law for once makes some sense! FMLA reduced schedule or intermittent leave is by its nature, temporary. So we allow temporary adjustments to an employee’s pay without permanent repercussions to an employee’s exempt status under the FLSA.

But there is, of course, more. Sometimes, employees may be paid according to the “fluctuating workweek method of payment for overtime.” As a refresher, that is a provision that essentially allows the employee to take home a fixed salary each week (even though actual hours worked in the week might vary), and then to receive overtime pay at one half their hourly rate for any extra hours worked.

How does this interact with the FMLA differently? Basically, the answer is this:

(b) For an employee paid in accordance with the fluctuating workweek method of payment for overtime, the employer, during the period in which intermittent or reduced schedule FMLA leave is scheduled to be taken, may compensate an employee on an hourly basis and pay only for the hours the employee works, including time and one-half the employee’s regular rate for overtime hours.

29 CFR §825.206(b).

Let’s break that down just a little bit. Essentially, the employer can, rather than paying the employee a salary, start to instead pay the employee on an hourly basis during their FMLA reduced schedule or intermittent leave. The employer must do this during the entire time in which the employee is taking the leave, and the provisions also indicate that the employer must, if he chooses to follow this policy, use it uniformly for all employees paid according to the fluctuating workweek method. Essentially, this means that as the employer, you can’t just pick and choose when to apply this and when not to; you must be consistent. But an important thing to note:

(b) If an employer does not elect to convert the employee’s compensation to hourly pay, no deduction may be taken for FMLA leave absences.

29 CFR §825.206(b).

If this sounds like the ultimate legal “gotcha” you’re probably right. On the one hand you don’t have to convert to paying the fluctuating workweek employee on an hourly basis . . . but if you don’t, you have to continue to pay the employee their full salary without taking any deductions for the leave. I think we can all guess what most employers will choose to do on that one.

Last but not least, this portion of the Code of Federal Regulations ends with the reminder that all of these provisions only apply to FMLA-eligible leave and FMLA-eligible workplaces. If you need help, just remember: if the leave doesn’t qualify as FMLA leave, you can’t do any of this fancy finagling we’ve just discussed. If you do that, you risk forfeiting the exempt status of your employees under the FLSA or the employee’s eligibility for the fluctuating workweek method of payment.

Increments of FMLA leave for intermittent or reduced schedule

In our last blog post, we talked about intermittent leave or reduced schedule leave, and how as an employer, you may ask an employee to transfer roles during such a leave in order to better accommodate a changed work schedule. But let’s back up: once an employee has been granted the intermittent or reduced schedule leave, how, as the employer, can you account for it?

           (a)(1)  When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and  provided further that an employee’s FMLA leave entitlement may not be reduced  by more than the amount of leave actually taken.


29 CFR §825.205(a)(1).

Let’s break that down. First, no matter how you calculate other types of leave, FMLA leave cannot be calculated in increments greater than one hour. Easy enough. But if the company calculates say, sick leave, in half hour increments, for instance, that means that an employee’s FMLA leave must also be calculated in at least half hour increments. FMLA leave can always be calculated in shorter increments, but never longer than the shortest increment the company uses for other types of leaves, and notwithstanding that, never longer than one hour increments.

Okay, you may be thinking, why does this matter to me? Truth is, it certainly won’t impact how you run your business on a day to day basis, but how leave is calculated does matter for both the employer and the employee on the margins. Additionally, as with any legal rule, there are some exceptions to these calculations that you should be aware of:

           (a)(2)  Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way though a shift . . . the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee’s FMLA entitlement.


29 CFR §825.205(a)(2).

The examples of when it would be “physically impossible” for someone to leave or arrive to work mid-shift include that of a train conductor or an airplane pilot. So long as your work is more flexible than that, you can more or less ignore this exception as an employer. Even a nurse, who typically would work a twelve hour shift, for example, likely does not fall into this “physical impossibility” category, because while it may be inconvenient for a nurse to work just half a shift, it’s not, by definition, physically impossible.

Yet the exception that is more likely relevant to you as the employer and one that you should definitely be aware of, concerns overtime hours:

           (c)       If an employee would normally be required to work overtime, but is unable to do so because of a FMLA-qualifying reason that limits the employee’s ability to work overtime, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement.


29 CFR §825.205(c).

The key to understanding this provision is differentiating between required versus voluntary overtime hours. Voluntary overtime hours are not included when calculating the amount of hours an employee’s leave will cover. For example, if the employee has voluntarily picked up overtime in the past but is only required to work a 40 hour week, the employee’s leave will be calculated based on the 40 hours. The fact that the employee does not want to volunteer to pick up overtime hours during their leave will not, then, count against their leave entitlement. If, however, the employee is normally required to work 50 hours a week including required overtime, then the employee’s leave will be calculated based on a 50 hour week. This means that if the employee cannot work the required overtime or chooses not to work it, it will count against the employee’s leave entitlement.

In effect, required overtime means that the employee is entitled to more leave (since leave is calculated based on the hours the employee works each week multiplied by the number of weeks), but it also means that if the employee chooses not to pick up overtime during their leave, it counts against their FMLA leave entitlement. On the flip side, voluntary overtime means the employee is entitled to less leave, but failure to pick up overtime will not count against their leave hours.

As you can see, how FMLA intermittent or reduced schedule leave is calculated and tracked does make a difference at the margins. How your employee’s leave will be calculated is certainly worth a discussion

Transfer of an employee to an alternative position during intermittent leave or reduced schedule leave

So for awhile as you all know I had a former summer associate writing these.  Well I ran out of his posts.  So that mean’s I’m writing them again right?   Think again, I have more written by another summer associate.  Her mane is Malaina Weldy.  She is brilliant too.  Enjoy.  Steve.

Imagine with me, for a minute, that you have an employee with an illness, one that falls under the definition of “serious health condition” as discussed (ad nauseam, for some) in previous posts. Because of their illness, the employee plans to take intermittent leave or reduced schedule leave. Obviously, the employee is probably breathing a huge sigh of relief, but as the employer, you may be worried about or uncertain of how to handle the situation. Let’s walk through it.

Under the Family Medical Leave Act (“FMLA”):

  • [T]the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required, to an available alternative position for which the employee is qualified and which better accommodates recurring periods of leave than does the employee’s regular position.

29 CFR §825.204(a).

There are, of course, some caveats here (we’re lawyers, we like those). First, if you want to transfer the employee to a different role, the new position must have equivalent pay and benefits. You can’t reduce the employee’s hourly wage simply because the employee is working part time during an FMLA-compliant leave. Yet by the same token, you are not required to transfer the employee to a role with equivalent duties. The employee may simply be stuck, albeit temporarily, with reduced or different job responsibilities.

A second caveat: as an employer, you can’t eliminate an employee’s benefits during an intermittent or reduced schedule leave. For instance, if the employee had health insurance through the company before the employee went on leave, you are not allowed to eliminate those benefits simply because the benefits are not otherwise provided to part-time employees. Yet there are nevertheless aspects of an employee’s benefits that you may proportionately reduce. For instance:

  • [A]n employer may proportionately reduce benefits such as vacation leave where an employer’s normal practice is to base such benefits on the number of hours worked.

29 CFR §825.204(c).

As you can see, these particular rules and regulations regarding the FMLA are generally a mixed bag for employers. Yet the ultimate good news is this: during an intermittent or reduced schedule leave, you have the flexibility to transfer an employee to an alternative position that would better accommodate their new scheduling needs. However, under no circumstances can you transfer an employee to an alternative position in order to discourage that employee (or other employees) from taking intermittent or reduced schedule leave. Any attempt to do so is contrary to the FMLA, and the regulation provides several illustrations of this prohibited behavior:

  • For example, a white collar employee may not be assigned to perform laborer’s work; an employee working the day shift may not be reassigned to the graveyard shift; an employee working in the headquarters facility may not be reassigned to a branch a significant distance away from the employee’s normal job location.

29 CFR §825.204(d).

In sum, as the employer you can require your employee to transfer roles if the employee is taking intermittent or reduced schedule leave, but there are limits as to what that transfer can look like: pay and benefits must be equivalent and the role change can’t be made in order to dissuade the employee from taking the leave. Moreover, once the employee is finally able to return to work after their intermittent or reduced schedule leave, you must allow the employee to return to the same or equivalent job.

What? Intermittent Leave or Reduced Schedule Leave….Part 2

One more from Jarrod.  Then I have to start writing them myself again. . . . or do I.

Let’s look at some other qualifiers for medical necessity for intermittent or reduced schedule leave.

(1) Intermittent leave may be taken for a serious health condition of a spouse, parent, son, or daughter, for the employee’s own serious health condition, or a serious injury or illness of a covered servicemember which requires treatment by a health care provider periodically, rather than for one continuous period of time, and may include leave of periods from an hour or more to several weeks. Examples of intermittent leave would include leave taken on an occasional basis for medical appointments, or leave taken several days at a time spread over a period of six months, such as for chemotherapy. A pregnant employee may take leave intermittently for prenatal examinations or for her own condition, such as for periods of severe morning sickness. An example of an employee taking leave on a reduced leave schedule is an employee who is recovering from a serious health condition and is not strong enough to work a full-time schedule.

(2) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember, even if he or she does not receive treatment by a health care provider. See §§ 825.113 and 825.127.

29 CFR 825.202(b)

These provisions give us some concrete situations where an employee may be entitled to intermittent or reduced schedule leave, and also gives examples of what qualifies as intermittent leave. Intermittent leave is appropriate to care for a family member, one’s own serious health concerns, or for a covered servicemember when treatment by a healthcare provider is needed, but isn’t continuously needed. Either intermittent or reduced schedule leave may also be taken when the employee or the employee’s family is incapacitated due to a serious health condition even if the employee or family member does not receive treatment by a healthcare provider.

Another situation where reduced or intermittent leave may be permissible is in the case of birth or placement of a child for adoption or foster care.

(c) Birth or placement. When leave is taken after the birth of a healthy child or placement of a healthy child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer’s agreement, works part-time after the birth of a child, or takes leave in several segments. The employer’s agreement is not required, however, for leave during which the expectant mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition. See § 825.204 for rules governing transfer to an alternative position that better accommodates intermittent leave. See also § 825.120 (pregnancy) and § 825.121 (adoption and foster care).

29 CFR § 825.202(c)

Note that only if the employer agrees, following the birth of a child or the placement of a child for adoption or foster care, may an eligible employee take intermittent or reduced schedule leave. If the employer does not agree, the employee may still be eligible for continuous leave. The employer has no say in the matter, however, if the expectant mother or the child has a serious health condition.

(d) Qualifying exigency. Leave due to a qualifying exigency may be taken on an intermittent or reduced leave schedule basis.

29 CFR § 825.202(d)

An eligible employee is entitled to take intermittent or reduced schedule leave for that as well.

Lastly, it is worth noting that if an eligible employee is planning leave for medical treatment, and plans on take reduced schedule or intermittent leave, the employee must take reasonable steps to not disrupt the employer’s operations.

Eligible employees may take FMLA leave on an intermittent or reduced schedule basis when medically necessary due to the serious health condition of a covered family member or the employee or the serious injury or illness of a covered servicemember. See § 825.202. Eligible employees may also take FMLA leave on an intermittent or reduced schedule basis when necessary because of a qualifying exigency. If an employee needs leave intermittently or on a reduced leave schedule for planned medical treatment, then the employee must make a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.

29 CFR 825.203

The rest of the language in this regulation is basically repeating what has already been said throughout this section.

What? Intermittent Leave or Reduced Schedule Leave….Part 1

We have discussed for what reasons an eligible employee may take leave and for how long, but we have yet to look at how an employee may take FMLA leave. I know what you’re thinking, what kind of question is that? Doesn’t the employee just not show up for work? And the answer to that is one lawyers love to give and everyone else in the world hates: it depends.

(a)  Definition. FMLA leave may be taken intermittently or on a reduced leave schedule under certain circumstances. Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee’s schedule for a period of time, normally from full-time to part-time.

29 CFR § 825.202(a)

That’s right, in addition to taking leave for a continuous block of time, there are two other types of leave under FMLA, intermittent or reduced schedule. However, an eligible employee is not always entitled to intermittent and reduced schedule leave. Sometimes employer approval is required whereas other times it is not. Let’s look at the first possible reason an eligible employee may take intermittent or reduced schedule leave under FMLA.

(b) Medical necessity. For intermittent leave or leave on a reduced leave schedule taken because of one’s own serious health condition, to care for a spouse, parent, son, or daughter with a serious health condition, or to care for a covered servicemember with a serious injury or illness, there must be a medical need for leave and it must be that such medical need can be best accommodated through an intermittent or reduced leave schedule. The treatment regimen and other information described in the certification of a serious health condition and in the certification of a serious injury or illness, if required by the employer, addresses the medical necessity of intermittent leave or leave on a reduced leave schedule. See §§ 825.306, 825.310. Leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned and/or unanticipated medical treatment of a serious health condition or of a covered servicemember’s serious injury or illness, or for recovery from treatment or recovery from a serious health condition or a covered servicemember’s serious injury or illness. It may also be taken to provide care or psychological comfort to a covered family member with a serious health condition or a covered servicemember with a serious injury or illness.

29 CFR § 825.202(b)

This is one of the situations where the employer really has no say in the matter. If the employee has a serious health condition, or needs to care for family member or a covered servicemember, then the employee may be entitled to intermittent or reduced schedule leave. Whether or not an eligible employee would need such leave is determined by medical necessity, which in turn is determined by a healthcare provider. Common reasons for reduced intermittent or reduced schedule leave are for medical treatment or to provide physical and psychological care to family members or covered servicemembers.

Why? Care for a Parent with a Serious Health Condition

I’m running out of Jerrod posts.  I may actually have to start working on this thing again.  And that is a bummer.

So after a quick recess to discuss how long employees may take leave, we are back on the issue of reasons why eligible employees may be entitled to leave. This time we are discussing leave to care for a parent.

(a) General rule. An eligible employee is entitled to FMLA leave if needed to care for the employee’s parent with a serious health condition. Care for parents-in-law is not covered by the FMLA. See § 825.122(c) for definition of parent.

29 CFR § 825.201(a)

Well that’s pretty explicit, an eligible employee may take FMLA leave to care for a parent with a serious health condition, but not for an in-law. Previous posts such as the one here have discussed what qualifies as a serious health condition, but let’s make sure we know what a parent is. I know, questions you never thought you would actually need to ask, but hey that’s the law for you.

(c) Parent. Parent means a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (d) of this section. This term does not include parents “in law.”

29 CFR § 825.122(c)

Not too complicated, a parent is generally what someone would expect a parent to be. But there is that crazy Latin phrase that has popped up a couple of other times in this blog: “in loco parentis.” As a reminder for those who don’t read and write a dead language, this translates to “in the place of a parent.” FMLA gives us the following definition:

(3) Persons who are “in loco parentis” include those with day-to-day responsibilities to care for and financially support a child, or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

29 CFR § 825.122(d)

Therefore, someone is considered a parent under FMLA if that person cared for and financially supported the eligible employee on a day-to-day basis when the employee was a child.

Caring for a parent is one of those things that falls within the 12 workweeks allotted for leave under 29 CFR § 825.200(a)(3), but don’t forget that those 12 workweeks must split between all of the reasons that an eligible employee may be entitled to leave under § 825.200(a). To add some additional confusion to the mix, if an employee and the employee’s spouse work for the same employer and are both entitled to FMLA leave, those 12 workweeks may have to be split between them.

(b) Same employer limitation. Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement. This limitation on the total weeks of leave applies to leave taken for the reasons specified as long as the spouses are employed by the same employer. It would apply, for example, even though the spouses are employed at two different worksites of an employer located more than 75 miles from each other, or by two different operating divisions of the same company. On the other hand, if one spouse is ineligible for FMLA leave, the other spouse would be entitled to a full 12 weeks of FMLA leave. Where the spouses both use a portion of the total 12-week FMLA leave entitlement for either the birth of a child, for placement for adoption or foster care, or to care for a parent, the spouses would each be entitled to the difference between the amount he or she has taken individually and 12 weeks for FMLA leave for other purposes. For example, if each spouse took six weeks of leave to care for a parent, each could use an additional six weeks due to his or her own serious health condition or to care for a child with a serious health condition. See also § 825.127(d).

29 CFR 825.201(b)

The last couple sentences are really important because it makes it clear that even though spouse employees may have to share the 12 weeks for certain leave related reasons, such as caring for children or parents, other leave related reasons aren’t shared between the spouses. Instead, these are counted individually based on that spouse’s own amount of time actually taken off, rather than the time taken off by the other employed spouse.

How much? Amount of Leave an Eligible Employee May Take….Part 3

So because Jarrod has been writing these and because I was not paying attention I published part 3 of this series as part 2.  So this one, which is labeled part 3 should really be part 2 . . . OK now even I’m confused, but if you are following these closely they are going to look out of order.  Don’t worry, its all here.  Steve.

The employer must choose one of the 29 CFR § 825.200(b) options to apply to all employees of the business, and may only change options after providing all of its employees 60-day notice. That is, unless the employer is a multi-State employer in a State which has a family and medical leave statue, then in those States, the employer must comply with the State requirement and may choose any of the other options to apply to the rest of the employees in other states. Employers must also make sure that any change does not deprive an eligible employee of its full 12 weeks of leave.

(1) Employers will be allowed to choose any one of the alternatives in paragraph (b) of this section for the leave entitlements described in paragraph (a) of this section provided the alternative chosen is applied consistently and uniformly to all employees. An employer wishing to change to another alternative is required to give at least 60 days notice to all employees, and the transition must take place in such a way that the employees retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. Under no circumstances may a new method be implemented in order to avoid the Act’s leave requirements.

(2) An exception to this required uniformity would apply in the case of a multi-State employer who has eligible employees in a State which has a family and medical leave statute. The State may require a single method of determining the period during which use of the leave entitlement is measured. This method may conflict with the method chosen by the employer to determine any 12 months for purposes of the Federal statute. The employer may comply with the State provision for all employees employed within that State, and uniformly use another method provided by this regulation for the leave entitlements described in paragraph (a) for all other employees.

29 CFR § 825.200(d)

But what if an employer fails to choose one of the options listed?

(e) If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period for the leave entitlements described in paragraph (a), the option that provides the most beneficial outcome for the employee will be used. The employer may subsequently select an option only by providing the 60-day notice to all employees of the option the employer intends to implement. During the running of the 60-day period any other employee who needs FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period the employer may implement the selected option.

29 CFR § 825.200(e)

So basically, if the employer doesn’t choose an option, the employee, individually, gets to use the most beneficial option for them. This can be confusing because an employer can end up with a lot of different 12-month periods calculated in different ways. Thankfully, an employer can remedy this for all future employees by providing a 60-day notice to all employees of the employer’s option. However, during that 60-day period any eligible employees taking leave may still use the option most beneficial to them.

How much? Amount of Leave an Eligible Employee May Take….Part 2

Jarrod’s back.  I know you are all glad its him and not me.  

Now for those who have been following the blog closely (good job by the way) you remember leave to care for a covered servicemember with a serious injury or illness is 26 weeks in a 12-month period. Thankfully, in case you forgot or aren’t following on the blog closely (in this case you need to step up your game), we are reminded of that here.

(f) An eligible employee’s FMLA leave entitlement is limited to a total of 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. An employer shall determine the single 12-month period in which the 26-weeks-of-leave-entitlement described in this paragraph occurs using the 12-month period measured forward from the date an employee’s first FMLA leave to care for the covered servicemember begins. See § 825.127(e)(1).

29 CFR § 825.200(f)

Notice that this 12-month period for the 26 weeks is mandated to be calculated from the date that the eligible employee first takes leave to care for that servicemember, regardless of the 12-month option selected by the employer above.

Though we have discussed this in our previous post as well, it is again worth noting that 26 workweeks is the limit of entitled leave for the employee and it does not stack with the 12 weeks.

(g) During the single 12-month period described in paragraph (f), an eligible employee’s FMLA leave entitlement is limited to a combined total of 26 workweeks of FMLA leave for any qualifying reason. See § 825.127(e)(3).

29 CFR § 825.200(g)

An employee may take the full 26 weeks to care for the covered servicemember, or it may use up to 12 of those weeks for the reasons listed in 825.200(a).

Now you may be wondering how holidays factor into this leave period, because that would really seem to throw a wrench into calculating a workweek. Thankfully the drafters thought of that.

(h) For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one 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 for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Methods for determining an employee’s 12-week leave entitlement are also described in § 825.205. See § 825.802 for special calculation of leave rules applicable to airline flight crew employees.

29 CFR § 825.200(h)

So now we know that holidays have no effect if they occur during a week taken off for leave, or said another way the employee is not considered as having taken one less day of leave just because a holiday falls within a week that have taken off. However, if an employee does not take off a full week, then the holiday won’t count as FMLA leave unless the employee would have had to work that holiday. Also, if the employer is not conducting business activity for certain weeks and employees aren’t expected to be at the workplace, those weeks don’t count towards an employee’s FMLA leave.

And that brings up a really interesting point that we have talked about before.  Remember an employee is entitled to 12 (or 26) workweeks of leave.  Not 84 days and not 480 hours, 12 workweeks.  Don’t forget that and if you have questions about it, give me a call.

Steve.

How much? Amount of Leave an Eligible Employee May Take….Part 1

This week Jarrod switches gears . . . 

In the past few posts we have been talking about the reasons why an eligible employee may take leave. Now we are switching gears to how much leave an eligible employee may take.

(a) Except in the case of leave to care for a covered servicemember with a serious injury or illness, an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:

(1) The birth of the employee’s son or daughter, and to care for the newborn child;

(2) The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;

(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition;

(4) Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,

(5) Because of any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a military member on covered active duty status (or has been notified of an impending call or order to covered active duty).

29 CFR § 825.200(a)

In previous posts we have gone into more depth with each of the reasons discussed, but our focus here is not on those reasons. We are looking at the total amount of FMLA leave eligible employees may take. The standard, except in the case of leave to care for a covered servicemember with a serious injury or ilness, is that an eligible employee is entitled for up to 12 workweeks of FMLA leave during a 12-month period for most reasons. The employer has a few options for determining how that 12-month period is calculated.

(b) An employer is permitted to choose any one of the following methods for determining the 12-month period in which the 12 weeks of leave entitlement described in paragraph (a) of this section occurs:

(1) The calendar year;

(2) Any fixed 12-month leave year, such as a fiscal year, a year required by State law, or a year starting on an employee’s anniversary date;

(3) The 12-month period measured forward from the date any employee’s first FMLA leave under paragraph (a) begins; or,

(4) A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave as described in paragraph (a).

29 CFR § 825.200(b)

All these options seem pretty easy to understand, but none the less, the regulators have taken it upon themselves to give us a couple lengthy run on sentences to make themselves clear.

(c) Under methods in paragraphs (b)(1) and (b)(2) of this section an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under the method in paragraph (b)(3) of this section, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period. Under the method in paragraph (b)(4) of this section, the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA protected.

29 CFR § 825.200(c)

I know you didn’t read that. My eyes glazed over the first time I looked at that paragraph too. So let me break it down for you. Under (b)(1) or (b)(2) the employer sets a 12-month period within which employee gets to take the 12 weeks of leave in. At the end of that 12-month period, the leave renews and the employee can take another 12 weeks. (b)(3) is similar, except the date is not determined by the employer but by the date the employee first takes leave. Under (b)(4) the employee has a 12 week stock that replenishes on the anniversary of each date of leave taken.

 

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