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Since the number of hours that constitute an employee´s "workweek" can factor into the number of hours of statutory leave that might be available, and the use of FMLA leave can be charged to an employee´s allotment through small or aggregated blocks of time, calculations of total leave entitlement require careful thought and analysis. Fortunately, the U.S. Department of Labor (DOL) has provided at least some information and guidance on these questions, both in the regulations it promulgated under the statute in 1995, and in interpretive FMLA opinion letters that have been released to the public.
First, the DOL has made clear that in most instances, an employee who is taking intermittent leave may be "charged" with using only that quantity of FMLA leave that is necessary to address the circumstances that gave rise to the need for leave. By way of illustration, if an employee who regularly works five days per week uses intermittent leave for one day per week for an extended period, he or she would be utilizing only one-fifth of a week (towards the 12-week entitlement) during each workweek.
Similarly, if the employee works eight-hour days and needs to take four hours each day for therapy or treatment, in the course of a regular workweek, they would be charged with utilizing only half of a week of leave.
The same principle also apply in situations involving overtime work. For example, if an employee is unable to work overtime one day per week because he or she needs to provide care during those hours to a covered relative with a serious health condition - and that inability makes performance of a regular shift impossible as well (as in the case of a flight attendant who can not make a 10-hour round-trip because of a need to provide care at the end of eight hours) - the employee can be charged only with the amount of time they sought to use protected leave (two hours), rather than the entire work period.
A second question arises when an employee works on a part-time basis and asks to take FMLA leave. In these cases, the amount of leave to which he or she is entitled is determined on a proportional basis, following a comparison of a normal workweek schedule with the amount of time worked during the period of the reduced schedule. Thus, if an employee normally works 30 hours per week and seeks to substitute FMLA leave for 10 hours of that schedule (continuing to work 20 hours per week), that would constitute one-third of a week of leave. Other questions arise when the work schedule of an employee seeking leave varies from one week to the next, because of overtime assignments or varying customer demand. In this case, a distinct calculation may be necessary.
According to the DOL´s FMLA regulations (29 C.F.R. Â§825.205(d)), an employer determines such an employee´s regular workweek by calculating an average of the hours actually worked in the 12-week period prior to beginning the leave. For example, if an analysis of the 12 weeks immediately prior to the commencement of a protected leave shows the individual worked six weeks of 50 hours, three weeks of 60 hours and three weeks of 40 hours, the individual´s "workweek" for purposes of "charging" his or her FMLA entitlement is 50 hours. Therefore, the worker would be entitled to 600 hours of FMLA leave, which might be taken in the form of 12 50-hour weeks, or as intermittent leave that adds up to that total. While this limited amount of guidance is provided by DOL´s FMLA regulations, the issue also has been clarified through an opinion letter ruling in which DOL interpreted application of the FMLA to a specific set circumstances.
In the letter ruling (Opinion Letter FMLA-107), which was issued July 19, 1999, the DOL appeared to distinguish between situations in which individuals work overtime irregularly or on a voluntary basis, and those circumstances in which overtime work is a part of the employee´s normal or usual workweek. The opinion letter stated that if overtime is worked on an "as needed" basis and is not part of an employee´s usual or normal workweek - or the overtime is worked on a voluntary basis - those hours would not be used to calculate the individual´s leave entitlement or charged to his or her leave balance when the worker takes periods of protected leave.
Perhaps even more noteworthy in the letter is DOL´s further statement that if overtime is worked by the employee on either an "as needed" or voluntary basis, an employer is not free to discipline an employee when he or she is unable to work those overtime hours because of limitations described in a medical certification submitted for FMLA purposes. Some employers are likely to find that limitation surprising and disturbing, at least in some circumstances, since a great many workplaces require employees to work overtime as a condition of employment or continued employment, but only when such work is "needed" (and not as part of a regular schedule). Thus, at least some employers may fear that an employee in this circumstance who has submitted a medical certification for a protected condition triggering intermittent leave rights may have the protected ability to refrain from unwanted overtime work with no further documentation or substantiation, without even reducing their available FMLA leave.
In circumstances where an employee´s normal workweek exceeds 40 hours, those hours worked above 40 must be included when one is determining the quantity of leave available to the individual. Returning to the example cited above (where the 12 weeks prior to leave revealed an average 50-hour workweek), the employee would have a total of 600 hours of FMLA-protected leave available, in contrast to a 40-hour per week worker, who would have a total of 480 hours of job-protected leave under the federal statute.
However, in this example, each week of FMLA-covered absence would extinguish 50 hours of leave entitlement, rather than 40 hours that would apply to an employee who works a "standard" workweek. Moreover, if such an employee could work only a regular "straight time" schedule and could not work overtime, the individual could properly be charged with use of 10 hours of FMLA leave entitlement during that period of reduced work.
Overtime ´As Needed´?
So, what is the distinction between individuals who must work overtime "as needed" (when such hours need not be included in the calculation of the statutory entitlement or use of leave) and those whose overtime work is variable, but part of the usual or normal workweek? This line appears to be somewhat vague.
For example, according to the DOL opinion letter, it is appropriate to include overtime hours as part of one´s "usual and normal workweek" even when the employer may not know in advance of the workweek when overtime will be scheduled or how much overtime will be worked that week (since hours may be based upon business demand that varies each week). How that varies from overtime worked on an "as needed" basis is not entirely clear.
Holidays and Plant Shutdowns
Finally, the FMLA rules (29 C.F.R. Â§825.200(f)) also address circumstances under which an employer´s operations may close for a period when an employee is using statutory leave. The rules distinguish between situations in which an individual holiday falls during a week taken as FMLA leave and periods in which an employer´s operation is shut down for an entire week, or longer.
In the case of an isolated holiday, the rules state that such an occurrence has no impact on the calculation of utilized leave that otherwise would take place. Thus, if an employee takes a week of FMLA leave in the same week that the employer shuts down for a holiday - such as Christmas - the period of absence still counts as one week of statutory leave.
By contrast, however, if the employer´s business activity has temporarily ceased and employees are not expected to report for work for a period of one or more full weeks (for instance, for maintenance shut-downs or seasonal closures), such periods do not count toward the employee´s FMLA leave entitlement. This is true even if the employee was on leave before the closure period began and after it ended.
These difficult concepts and their application are some of the numerous implementation details that challenge at least some employers under the FMLA and the DOL´s regulations.
This article was excerpted from the Family and Medical Leave Handbook by Thompson Publishing Group. More information on the Handbook is available at www.thompson.com/libraries/wagehour/time/index.html.