Q: Several of my employees’ workweeks vary from week to week. Some might work 30 hours one week and 40 hours the following week. How do I calculate their intermittent FMLA leave in any given week?
A: As we know, FMLA leave can be taken over a continuous period of time or intermittently/reduced schedule. If leave is taken over a continuous period of time, the employee is entitled to 12 workweeks of leave regardless of the number of hours typically worked in the workweek.
However, when an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee’s FMLA leave entitlement. When dealing with a reduced schedule or intermittent leave under the FMLA, an employer first should calculate how many hours of leave an employee is entitled to. You make this calculation according to the employee’s regular workweek. For example, an employee who regularly works a five-day work week and eight hours a day, is entitled to 480 hours of leave: 12 weeks x 40 hrs/wk. Similarly, an employee who works a four-day week and eight hours each day is entitled to 384 hours of leave: 12 weeks x 32 hrs/wk.
But what about the employee whose schedule varies week to week? Like the question initially posed above, the employee might work 30 hours this week, but 40 hours next week. The week after, the employee might pick up someone else’s shift and work 48 hours. In any given week, how should an employer determine how much FMLA leave the employee has used so that it can track the employee’s total FMLA leave allotment?
Let’s look to the FMLA regulations first:
If an employee’s schedule varies from week to week to such an extent that an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. 29 CFR 825.205(b)(3)
This current regulation departs from the former regulation (prior to 2009) in two respects: first, by changing the calculation period from 12 weeks to 12 months (to account for seasonal variation in hours worked); and, second, by changing the phrase “weekly average of hours worked” to “weekly average of the hours scheduled . . . including any hours for which the employee took leave of any type.”
The regulations do not explain the reason for the change in language from “hours worked” to “hours scheduled,” but the preamble to the regs [ahem, only true FMLA nerds care about the preamble] state that the intent of the rule change was to “give a truer picture of the employee’s actual average workweek.” 73 Fed. Reg. 67978 (pdf) From what I can tell, no court has yet interpreted this change in the regulations. Absent any further guidance, it seems to me that the DOL used the word “scheduled” simply to mean that employers should calculate an employee’s leave entitlement based on an average of how many hours the employee would have worked in the past 12 months if the employee reported to work for every hour scheduled, as opposed to an average of how many hours the employee actually worked during the same time period.
Keep in mind one general principle when it comes to a varying work schedule: this “varying workweek” regulation should be used sparingly, since the employer will almost always be able to calculate how many hours an employee is scheduled in any given week. For instance, if an employee is scheduled for 30 hours one week and takes intermittent leave for 10 hours that week, he has used 1/3 of a workweek for FMLA purposes. If an employee is scheduled for 40 hours the following week and takes intermittent leave for 8 hours that week, he has used 1/5 of a workweek for FMLA purposes. Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.
So, my employer friends, this is a long-winded way of saying that the weekly average method should be reserved for situations where you are unable to determine with any certainty how many hours the employee would have worked. One example of this limited application might come from the case of Brotherhood of Locomotive Engineers v. Union Pacific Ry. Co., where train engineers’ assigned work schedules varied from week to week depending on trains scheduled to meet customers’ demands and where assignments could be made as little as one hour before the shift started. In this case, the court found that the employer could average the number of hours to determine the employee’s FMLA leave allotment.
Use this above case as the exception, however. In the far majority of cases, you will be able to calculate your employee’s FMLA leave allotment in any particular week, even though the schedule may vary from week to week.
I can only imagine how many questions this post will generate. This is why the FMLA is so much fun. [smirk]