Calculating FMLA leave entitlement

Amount of time off is based on employee’s normal workweek

Posted July 15, 2016

Michelle was having a hard time explaining to Dan, an employee, just how much time off he could take under the Family Medical Leave Act (FMLA). “While it’s generally 12 workweeks of leave, if you take the leave on an intermittent or reduced schedule basis, how much leave you get will depend upon what your workweek is,” she said. “Since you work 30 hours per week, if you take the leave in less than full week increments, you would be entitled to 360 hours of leave, because 12 x 30 = 360.”

Dan’s puzzled look coaxed Michelle to continue. “If you take leave in full weeks, you simply get 12 of those weeks,” she explained. “Often, people think they are entitled to 480 hours of intermittent leave, or that the maximum amount of leave is 480 hours, but the 480 is 12 x 40, and the 40 would need to be the actual hours in the workweek. Your actual workweek, however, is 30 hours, so you get 360 hours of intermittent or reduced-schedule FMLA leave.”

Dan shook his head in bewilderment, “Why did the government write the law that way?”

“That would be a good question for the government,” said Michelle, empathizing with Dan’s confusion. But generally, it makes sense. You get 12 of your particular workweeks of FMLA leave.”

For many FMLA administrators, calculating how much leave an employee is entitled to take might appear easy on the surface, but it can involve some complications. The preamble to the original FMLA regulations indicates the following:

“The statute uses the ‘workweeks’ as the basis for leave entitlement, and an employee’s normal ‘workweek’ prior to the start of FMLA leave is the controlling factor for determining how much leave an employee uses….

“Nothing in the Act or its legislative history suggest that the maximum amount of leave available to an employee is 480 hours. If an employee’s normal workweek exceeds 40 hours, the calculation of total FMLA leave available for pro rata reduction of total leave entitlement during intermittent leave or reduced leave schedules should be based on the employee’s normal workweek — even if it exceeds 40 hours.”

Therefore, not all employees are entitled to 480 hours of FMLA leave when it is taken intermittently or on a reduced schedule basis. For Dan, it was 360 hours. If Dan worked 50 hours per week, he would be entitled to 600 hours of intermittent or reduced schedule FMLA leave. 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.

Knowing what an employee’s normal workweek is prior to leave can be challenging if employers do not keep track of employees’ actual hours in a workweek. With more employees being entitled to overtime due to the recent Fair Labor Standards Act (FLSA) changes, however, perhaps more employees will have their workweeks tracked, making FMLA administration easier. Of course, even for those employees who will remain exempt under the FLSA, employers may still require them to keep track of their workweeks.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.


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