(February 2013) (PDF)

Determining whether company holidays count towards an employee's FMLA entitlement depends on whether the employee takes leave for an entire week or on a lesser intermittent or reduced schedule basis. When an employee entitled to leave under the Family and Medical Leave Act of 1993 (FMLA) needs intermittent leave or leave on a reduced schedule due to a serious health condition (employee's own or that of a family member) or serious injury or illness of a covered servicemember or former servicemember, the employer may require the employee transfer temporarily, during the period for which the leave is needed, to an alternative position that better accommodates the absences.

The Family and Medical Leave Act (FMLA) entitles eligible employees who work for covered employers to take unpaid, job-protected leave for specified family and medical reasons. This fact sheet explains how an employee’s FMLA leave entitlement and usage is determined. SeeFact Sheet 28: Family and Medical Leave Act and Fact Sheet 28M: The Military Leave Provisions under the FMLA, for more information.

Note: Special rules apply to the calculation of leave entitlement and increments of leave for airline flight crew employees. See Fact Sheet 28J,Special Rules for Airline Flight Crew Employees under the FMLA.

FMLA LEAVE ENTITLEMENT AND INCREMENTS OF LEAVE

An employee is entitled to up to 12 workweeks of FMLA leave for most qualifying reasons or up to 26 workweeks of FMLA leave for military caregiver leave. The employee’s actual workweek is the basis for determining the employee’s FMLA leave entitlement. An employee does not accrue FMLA leave at any particular hourly rate.

FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour. The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour. If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15 minute increments and vacation leave in one day increments), the employer must allow FMLA leave to be used in the smallest increment used for any other type of leave. Similarly, if an employer allows for use of leave in different increments during specific times of the day (for example, requiring a one hour increment of leave at the start of the shift and using 15 minutes increments for leave at other times), the employer may use the same increment for FMLA leave at those specific times of the day. An employer may always allow FMLA leave in shorter increments than used for other forms of leave but no work may be performed during any period of time counted as FMLA leave.

CALCULATION OF LEAVE USAGE

Only the amount of leave actually taken may be counted against an employee’s FMLA leave entitlement. Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave) to determine the proportion of the FMLA workweek used. For example, an employee who normally works 30 hours a week but works only 20 hours in a week because of FMLA leave would use one-third of a week of FMLA leave. An employer may convert the FMLA leave usage into hours so long as it fairly reflects the employee’s actual workweek.

Time that an employee is not scheduled to report for work may not be counted as FMLA leave. If an employer temporarily stops business activity and employees are not expected to report for work for one or more weeks (e.g., a school that closes two weeks for the winter holiday, or a plant that closes for a week for repairs), the days the employer’s business activities have stopped do not count against the worker’s FMLA leave.

When a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave. However, when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

When an employee’s schedule varies so much that the employer is unable to determine how many hours the employee would have worked during the week the employee takes FMLA leave, the employer may use a weekly average to calculate the employee’s FMLA leave entitlement. The weekly average is determined by the hours scheduled over the 12 months prior to the beginning of the leave and includes any hours for which the employee took any type of leave.

Required overtime hours that are not worked by the employee because of an FMLA-qualifying reason may be counted as FMLA leave. However, voluntary overtime hours not worked due to an FMLA-qualifying reason may not be counted as FMLA leave.

PHYSICAL IMPOSSIBILITY

Occasional Fmla Rules

In a situation where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to begin or end work mid-way through a shift, the entire period the employee must be absent is designated as FMLA-protected leave and counts against the employee’s FMLA entitlement. The period of the physical impossibility is limited to the period when the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position after a period of FMLA leave due to the physical impossibility. This rule applies only to situations where it is truly physically impossible to return the employee to work after an FMLA-qualifying absence, for example, a railroad conductor whose FMLA leave prevents him from boarding the train before it leaves for its scheduled trip.

SUBSTITUTION OF LEAVE

FMLA leave is unpaid leave. However, an employee may request, or an employer may require the employee, to use accrued paid vacation leave, sick leave, personal time, etc. for some or all of the FMLA leave period. An employee must follow the employer’s normal leave rules in order to substitute paid leave. When paid leave is used for an FMLA-covered reason, the leave is FMLA-protected. SeeFact Sheet 28A: Employee Protections under the FMLA, for more information.

ENFORCEMENT

It is unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided by the FMLA. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to the FMLA. SeeFact Sheet 77B: Protections for Individuals under the FMLA. The Wage and Hour Division is responsible for administering and enforcing the FMLA for most employees. Most federal and certain congressional employees are also covered by the law but are subject to the jurisdiction of the U.S. Office of Personnel Management or Congress. If you believe that your rights under the FMLA have been violated, you may file a complaint with the Wage and Hour Division or file a private lawsuit against your employer in court.

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4-USWAGE (1-866-487-9243).

This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

During this election season, the fact that the U.S. is the only developed country without paid family and medical leave has been a talking point for more than one candidate. Yet, the prospect of mandatory paid leave can seem a bit daunting for employers who are still struggling to curb unpaid leave abuse.

It’s undeniable that the Family Medical Leave Act (FMLA) has a legitimate purpose and many employees benefit from its protections. However, there are also employees who abuse the law’s protections. This is particularly true of those who use intermittent FMLA leave when vacation or personal time is not available. Such abuse is disruptive to the work environment and can leave many managers frustrated. Fortunately, the FMLA regulations provide a number of tools that employers can utilize to curb FMLA leave abuse within the workplace.

Certify and recertify

One of the most effective tools for combatting FMLA leave abuse is the medical certification form. All too often, employers fail to obtain medical information necessary to determine whether an employee suffers from a serious medical condition and is entitled to leave in the first place. Employers should require employees to submit a medical certification and may deny the leave request if the certification is not returned. When a certification has entries that are incomplete, ambiguous or non-responsive, the employer may request additional details. If the employee fails to provide the requested information, leave may be delayed or denied. Additionally, FMLA regulations provide a number of opportunities to seek recertification, including intermittent leave.

Ask for a second opinion

Employers who question the validity of the initial certification may obtain, at the employer’s expense, a second — or even third — opinion from an objective health care provider.

Establish and enforce call-in procedures for all absences

Employers may enforce established call-in and no-show policies, even for employees on FMLA leave. The key is ensuring that such policies are consistently applied and employees on FMLA leave are not being singled out.

Require use of paid leave

Employers may require employees to use paid leave time for their intermittent FMLA absences. Employees are less likely to abuse FMLA if they know they must exhaust their personal or vacation time before using unpaid FMLA leave.

Count all absences related to the condition

Once the medical certification is completed, employers must establish a process for tracking absences related to the condition so they can be counted against the employee’s FMLA entitlement, but not counted against the employee under the employer’s attendance policy.

Require employees to schedule medical appointments around work schedule

FMLA regulations allow employers to require employees to schedule planned medical treatments in a way that least disrupts the employer’s operations. For example, employers can inquire about the frequency of the treatments, available office hours, and whether treatments can be scheduled before or after work or during the employee’s days off.

Consider temporarily transferring employees who take foreseeable intermittent leave

If the need for intermittent leave is foreseeable, an employer may temporarily transfer the employee to an available alternative position that better accommodates recurring periods of leave. The alternative position must have equivalent pay and benefits, but does not have to have equivalent duties.

Establish a policy prohibiting employees from working a second job while on leave

Fmla Intermittent Leave Guidelines 2019

Absent a uniformly applied policy prohibiting secondary employment, an employee is generally protected from disciplinary action for working a second job while on FMLA leave. You can prevent abuse by having a written policy that prohibits supplemental employment while on any type of leave.

Follow up on suspicious circumstances

Credible reports of suspected abuse should be investigated and documented. Termination for FMLA abuse is generally appropriate if the employer honestly and in good faith believes that the employee misused leave, the action is consistent with how the employer would treat non-FMLA leave takers and the decision is not motivated by the fact the employee took FMLA leave. If suspected abuse is brought to your attention, document who and how it was brought to your attention, and follow due process in investigating the concern.

Train front-line supervisors

Supervisors are the eyes and ears of the organization and should be trained to spot potential FMLA-qualifying absences and bring them to HR’s attention.

Although no single tool alone will curtail the abuse of intermittent FMLA leave, if used together these tools will help managers avoid such abuse.

Occasional Fmla Definition

Melissa Dials is Of Counsel at the Cleveland office of Fisher Phillips, a national labor and employment law firm.