Are You Miscalculating Available FMLA Leave Time?
HR pros know that issues surrounding available FMLA leave can get complicated and difficult to manage. A new opinion letter from the federal Department of Labor (DOL) shows how careful employers must be about limiting employee use of leave – and calculating available leave time properly.
In the letter, the DOL advises that an employee who is normally required to work more than eight hours per shift – but is not able to do so for an FMLA-qualifying reason – can use FMLA leave for the rest of their shift until their FMLA leave is exhausted.
The letter responds to the question of whether the FMLA “entitles an employee to limit their workday to eight hours a day for an indefinite period of time because of a chronic serious health condition, where that employee normally works in excess of eight hours a day.”
No — but yes
Technically, the short answer to this question as posed is an unequivocal “no” because the amount of leave time available under the FMLA is finite. But the DOL’s answer spins the question into one that essentially asks whether employees can use their available FMLA time to shorten their work shifts for an FMLA-qualifying reason. And the answer to that question, the agency reports, is a resounding “yes.”
The letter’s quick answer to the question is this: “[A]n eligible employee with a serious health condition that necessitates limited hours may use FMLA leave to work a reduced number of hours per day (or week) for an indefinite period of time as long as the employee does not exhaust their FMLA leave entitlement.” (Emphasis added.)
Available FMLA leave
Translation: If they have the hours available and the shortened workday is needed for an FMLA-qualifying reason, employers must allow it.
In these situations, the employee can use FMLA leave for the remainder of each shift – and the missed hours are deducted from their remaining FMLA leave entitlement.
Once all available leave is used up, employers are relieved of their FMLA obligation to permit shortened shifts, the letter says.
Under the FMLA, employers must allow eligible employees to take FMLA leave on a reduced schedule or intermittent basis when doing so is medically necessary due to the employee’s serious health condition, the letter explains. And employees can use FMLA leave in small increments, it adds.
How to calculate leave entitlement
When calculating leave entitlement, remember that while 12 remains the consistent number for weeks of leave available (26 for military caregiver leave), the number of available leave hours is calculated by reference to the employee’s actual workweek. This means not all employees are entitled to the same number of leave hours.
Of course, employees are not required to take FMLA in weekly increments. Instead, and as the DOL explains in a relevant fact sheet and as set by an implementing regulation, employees may use leave in the smallest time increment that is permitted for other kinds of leave – though that amount of time cannot be more than an hour.
What if an employer uses different time increments for different types of leave? In that case, the DOL advises, the employer must permit employees to use FMLA leave in the smallest increment that is used for any other type of leave.
Another point about calculating leave entitlement: If an employer allows for different increments depending on the time of day, then it must use those increments for FMLA leave at those times of day.
And employers are free to permit FMLA leave in smaller increments than they permit for other forms of leave.
So just what are these ‘opinion letters’?
The DOL’s Wage and Hour Division describes its opinion letters as “official written explanations of what the FLSA or the FMLA requires in fact-specific situations,” adding that the letters can help the public “develop a clearer understanding” of what the law requires. These letters are statements of what the DOL says the law requires in specific factual situations. Importantly, they may serve to limit employer liability by providing the basis for a good-faith defense to a challenged practice.
The Obama administration disfavored opinion letters, saying they were not an efficient use of resources. Instead, it issued “Administrator Interpretations” that offered guidance on a broader basis. The Trump administration revived the practice of issuing them more regularly, but this new one is the first posted by the DOL since President Biden took office.
Bottom line for employers
All FMLA-covered employers – and especially ones who have departments with 24-hour coverage needs and/or employees who typically work extended shifts – must be aware of proper leave calculation methods and requirements relating to the incremental use of FMLA leave.
