If person on FMLA leave works full work week, when will she run out of leave time? 11-06-2007

When adding hours that count towards an employee's FMLA entitlement, we've counted all hours the employee did not work during their established work schedule, regardless of whether the employee worked extra hours during the same workweek to make up the missed hours.

For example, we have an employee who arrives two to three hours late some days due to her FMLA covered illness. We count the missed hours on these late arrival days against her FMLA entitlement. However, to ensure she receives a "full' paycheck, she requests and we allow her to work extra hours on other days to make up for the missed hours. The result is while she may have used hours against her FMLA entitlement, her timesheet does not show any leave used. This is really more of a benevolent act on our part since she is in a customer service position and is of less value to us during the "extra" hours she works.

Is this method of calculation allowed under the law? We understand the employee's desire for a full paycheck but will never meet our FMLA limit.

Ann Kiernan replies:

Very interesting! Trouble is, it doesn't look like the employee is taking leave at all. Rather, the employer is allowing her to work a modified schedule, which is really more like an ADA accommodation.

29 CFR 825.205(a) says:

If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled. For example, if an employee who normally works five days a week takes off one day, the employee would use 1/5 of a week of FMLA leave. Similarly, if a full- time employee who normally works 8-hour days works 4-hour days under a reduced leave schedule, the employee would use 1/2 week of FMLA leave each week. (emphasis added)

DOL Opinion Letter FMLA2002-1 makes it clear that FMLA is calculated on a weekly, not daily, basis:

Under the FMLA, the workweek is the basis for an employee's leave entitlement (See FMLA, Section 102(a)(1).) The entitlement is not phrased in terms of a particular number of days or hours of leave, but rather as 12 workweeks of leave. Thus if there is a holiday in a week when an employee is on leave for the full week, the employee is still charged with a week of leave. (See Section 825.200(f) of Regulations, 29 CFR Part 825.) Similarly, if an employee normally works a 50-hour workweek, the employee's statutory entitlement is not capped at 480 hours. (See 60 Fed. Reg. 2180 (Jan. 6, 1995) (preamble to 825.205.) Thus, the focus is always on the workweek, and the employee's "normal" workweek (hours/days per week) prior to the start of FMLA leave is the controlling factor for determining how much leave an employee is entitled to use. Only the amount of leave actually taken may be counted against the employee's 12-week entitlement of FMLA leave. (See section 825.205 of Regulations, 29 CFR Part 825.) (emphasis added)

In this case, all the time is made up the same workweek, so there's been no "leave", just a time shift. The FMLA clock does not start unless the employee is working less than her full weekly hours.

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