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