Nyemaster Goode, P.C.

Nyemaster Goode Top Ten List: No. 7 – Tracking Intermittent FMLA Leave

By Amanda Atherton

Year end is a good time to review employees’ use of leave time under the Family and Medical Leave Act and ensure your calculations are correct. Employees are entitled to 12 weeks of leave under the Act. The first thing you need to do is determine what basis you are using for calculating leave. There are four options:

1. The calendar year;
2. A fixed year starting from another date (e.g. fiscal year start or employment anniversary date);
3. The 12-month period starting on the first day an employee takes FMLA leave; or
4. On a “rolling” basis measuring 12 months back from any day an employee takes FMLA leave.

We recommend option four, the rolling basis, because it limits employee’s ability to “stack” leave by using time at the end of an eligibility period and again at the beginning of the next eligibility period. Note that there are special situations in which this option is not available, such as for injured servicemembers. Additionally, if you do not have a stated policy for which option you use, or do not apply it consistently, you must give employees 60 days’ notice of the policy or use the method most beneficial to the employee.

Once you have determined your leave basis, figure out whether the employee is taking block time or intermittent time. Block increments of one week or more simply count against the 12 week total. This is true even if the employee works more than 40 hours a week. The key to FMLA calculations is that they are based on the number of weeks taken, not the number of hours taken. Many employers use a 480-hour system. This will lead to an incorrect result unless the employee works 40 hours a week, every week. For example, an employee who regularly works six eight-hour shifts a week can still take 12 full weeks (576 hours) off; his leave time is not reduced to 10 weeks (480 hours).

Intermittent FMLA leave is also calculated on a weekly, rather than an hourly, basis. An employee who normally works six eight-hour shifts a week, but can only work three eight-hour shifts per week for FMLA reasons, is taking one-half of a week of leave. She can do this for 24 weeks. An employee who normally works four eight-hour shifts a week but can only work two eight-hour shifts per week for FMLA reasons, is also taking one-half of a week of leave time and can do so for 24 weeks. The number of weeks these two employees can work reduced schedules with FMLA leave is the same even though the first employee ultimately misses 576 hours of scheduled work and the second only misses 384 hours. Note that if overtime hours are required, they count toward FMLA leave.

For employees whose schedules are variable, but predictable, the same principle applies. Say an employee is scheduled for six eight-hour shifts per week on odd weeks and three eight-hour shifts per week on even weeks throughout the year. Now say that same employee can only work two eight-hour shifts a week for FMLA-covered reasons. On the odd weeks, he is taking two-thirds of a week of leave (missing four of six shifts), and on the even weeks he is taking one-third of a week (missing one of three shifts). Just keep adding the fractions of weeks until you reach 12; then the employee has reached his limit. This example shows how critical it is to calculate leave on a weekly basis. If calculated correctly, this employee can maintain his schedule of FMLA leave for 24 weeks. If a straight 480-hour system is used, he can go 30 weeks, thereby receiving a significant amount of leave time to which he is not entitled. Calculation errors can also erroneously deprive employees of leave time to which they are entitled, thus opening the employer to liability for violating the Act.

If an employee’s schedule is variable but unpredictable, average the weekly hours scheduled (not the hours actually worked) from the entire 12-month period preceding the current leave period. A frequent example is a tax preparer, whose work varies cyclically. If she wants to take leave starting June 1, 2014, calculate the number of hours she was scheduled from June 1, 2013 to May 31, 2014 and divide it by 52. If the average is four eight-hour shifts a week, and she can only work two eight-hours shifts per week for FMLA reasons, she is taking half a week off and can do so for 24 weeks. This is true regardless of how many hours she would normally be required to work during any particular week during her leave period.

There are many other permutations that arise when calculating FMLA leave time based on individual employees’ circumstances. If you need further assistance, please check the FMLA regulations or contact counsel. Happy counting!


There are no comments for this entry.

Post Comment

Name: Required
Comment: Required
© 2019 Nyemaster Goode, P.C. All Rights Reserved.