FMLA Guidance: DOL Warns Against Shortchanging Employees’ Intermittent Leave Hours

The Family and Medical Leave Act (FMLA) entitles eligible employees to 12 workweeks of unpaid, job-protected leave in a 12-month period for certain qualifying reasons. That premise seems simple enough, but the FMLA is riddled with conditions and directives that can turn this simple premise into an administrative nightmare. The most notorious of these headaches is “intermittent” FMLA leave; that is, leave not taken in consecutive weeks but instead taken in hourly increments. For an employee who is approved for intermittent FMLA leave, the employer’s first task is to determine the employee’s entitlement. In other words, how many hours of FMLA leave should be allotted? For many employers, it becomes a simple math problem: 40 hours a week multiplied by 12 weeks equals 480 hours of intermittent leave. But for those employees who don’t work a tidy 9-5, this calculation spells trouble — and heightens the risk of an FMLA interference claim. In its most recent opinion letter, the Department of Labor (DOL) highlights this critical yet common mistake that employers make with a word of caution: When calculating intermittent FMLA leave, always pay attention to the employee’s actual work week and regularly scheduled hours.

Regularly scheduled hours and mandatory overtime must be factored in.

The DOL’s opinion letter addresses an employer’s question about calculating intermittent FMLA leave for correctional law enforcement employees working a fixed “Pitman schedule” that includes 12-hour shifts and mandatory overtime. Additionally, the correctional officers in this scenario were able to volunteer for additional hours that were not part of the employer’s published weekly schedule.

From this premise, we can extract a few key points:

1. The employees’ regularly scheduled hours are the baseline for the calculation. Here, the officers were working 84 hours every 14 days, inclusive of mandatory overtime. This equates to 504 hours over a 12-week period (84 hours x 6 weeks/42 hours x 12 weeks). Thus, the officers working this schedule were entitled to 504 hours of intermittent FMLA leave, not 480, as might be assumed. If, for example, an employee normally works a 30-hour workweek, that employee is entitled to 360 hours of leave (30 hours x 12 weeks).

2. Mandatory overtime hours must be included in the allotment and deduction of FMLA leave. The DOL also reinforced another important principle: Any mandatory overtime hours regularly required of an employee should be factored into the calculation of hourly leave entitlement. By that same token, when an employee uses FMLA leave during any hours the employee would normally be required to work — i.e., mandatory overtime — the employer should deduct that time from the employee’s total leave entitlement.

3. Voluntary overtime is not included in the allotment or deduction of FMLA leave. By contrast, voluntary overtime that an employee could potentially work should not be considered in the calculation of intermittent FMLA leave. Similarly, additional voluntary hours that an employee does not work due to an FMLA-qualifying reason should not be deducted from the employee’s leave entitlement.

Consider this example:

Mark is an EMT who normally works a 50-hour workweek, which includes mandatory overtime. He has a condition that qualifies for FMLA leave and is approved to take leave intermittently. The employer determines that Mark is entitled to 600 hours of FMLA leave. When Mark is called out for a mandatory overtime shift, he reports that he is unable to work due to his medical condition. The 12-hour shift that Mark is unable to work is deducted from his 600-hour allotment, leaving him with 588 hours of FMLA leave.

What about variable schedules and exempt employees?

The DOL’s guidance only addressed the proper calculation of FMLA leave based on an employee’s regular workweek. What happens if an employee’s schedule is so irregular that the total workweek hours cannot reasonably be predicted? In that case, the FMLA regulations permit the employer to take a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period.

Finally, these rules make sense for nonexempt employees whose working hours are tracked and thus make this calculation possible, but what about exempt salaried employees? Here, too, the FMLA regulations have an answer: For exempt employees taking intermittent leave, the employer and employee must have a written agreement stipulating to the employee’s average weekly hours for purposes of determining the employee’s leave allotment.

Bottom line

While intermittent FMLA leave presents plenty of challenges, employers that heed the DOL’s guidance and use the correct hourly calculation for an employee’s leave entitlement can help prevent an FMLA interference claim.

Please reach out to the author with any questions or assistance needed on this matter.