Archive for September, 2018

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.