HR MATTERS E-TIPS
FMLA Intermittent Leave and Workweek Calculation
How much leave are employees really entitled to under the FMLA if they
are using the leave a day at a time, or just a few hours at a time?
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THIS WEEK'S E-TIP: FMLA Intermittent Leave and Workweek
Q: We understand that the FMLA allows employees to take
up to 12
workweeks of FMLA leave. But how many days, or hours, of leave
an employee take? We are trying to calculate how much time off
employee should receive when taking leave on an intermittent or
reduced work schedule basis.
Family and Medical Leave Act (FMLA) requires
employers to provide up to 12 workweeks of leave to eligible
for various family and medical reasons. The law and its
regulations do not specifically define what is a workweek.
FMLA regulations, particularly those discussing intermittent and
work schedule leave, provide some clues as to how an employee's
workweek should be calculated.
The regulations define the workweek according to the individual
employee's actual time spent working, not based on a 7-day week
24-hour day. So, in 29 C.F.R. §825.205, the regulations indicate
employee who normally works five days a week takes off one day,
employee would use one-fifth of a week of FMLA leave. Similarly,
full-time employee who normally works 8-hour days then works 4-hour
under a reduced leave schedule, the employee would use one-half
of FMLA leave each week."
Likewise, in addressing part-time employees, the regulations in
825.205 state "Where an employee normally works a part-time
or variable hours, the amount of leave to which an employee is
determined on a pro rata or proportional basis by comparing the
schedule with the employee's normal schedule. For example, if an
employee who normally works 30 hours per week works only 20
week under a reduced leave schedule, the employee's ten hours of
would constitute one-third of a week of FMLA leave for each week
employee works the reduced leave schedule."
A 2002 Department of Labor Wage and Hour Division opinion letter
supports this position. In that letter (FMLA 2002-1, dated May
the DOL points out that if an employee normally works a 50-hour
workweek, the employee's statutory entitlement is 600 hours (50
x 12 =
600) and is not capped at or restricted to 12 weeks times the
hour workweek. Thus, the DOL's focus is always on the employee's
"normal" workweek (hours/days per week) prior to the start of
leave as the controlling factor for determining how much leave
employee is entitled to use.
If the employee takes leave in full-day increments, your
relatively simple if the employee works 5 days a week. For
the employee needs to take one day a week to seek medical
for 20 weeks, the employee would use just one-third of his FMLA
(One day a week equals one-fifth of the employee's week, so 20
using one-fifth of a week totals 4 weeks of FMLA leave, leaving
employee with 8 more weeks leave.) However, if the employee in
example normally works 6 days a week, then you must calculate
leave taken based on one-sixth of a week of leave.
If the employee requests
FMLA leave for less than a full day a
may be easiest to determine how much leave he uses by
how many hours the employee normally works a week. So, if the
employee normally works 50 hours a week, he would be entitled to
total of 600 hours of FMLA leave (50 x 12 = 600). If he needs
hours a week for five weeks to care for a seriously ill parent,
use a total of 25 hours of FMLA and would have an additional 575
available (600 – 25 = 575). Alternatively, using the same
example, if he
works only 35 hours a week, he would be entitled to just 420
FMLA leave total (12 x 35 = 420), leaving him with 395 hours of
(420 – 25 = 395).
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CD can find more information on the FMLA and intermittent and
work schedule leaves in Leaves of Absence, Chapter 703, note 36.
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