FMLA and Holiday Pay

LindaS

If you have an employee who has been approved for intermittent FMLA leave and misses work either the day before and/or the day following a holiday (tuilizing their FMLA), but works the rest of the week, would you pay them for the holiday?

Don D

It's my understanding that FMLA absences cannot count against any attendance policy or its rewards, such as perfect attendance. The rule is, I think, would the employee have received the benefit (pay, perfect attendance, no point sanctions) had it not been for the FMLA event, you cannot take that from them due to FMLA. I've seen more than a few employees receive perfect attendance checks after returning from 12 weeks of FMLA absence. Go figure.

LindaS

That was my understanding, as well as my practice, also. Thanks for the help.

Leslie

We require that an employee use any and all sick time available when they go out on FMLA. It is the use of the sick time, not the FMLA, the excludes them from our perfect attendance awards.

Don D

I can't agree with your analysis and practice Leslie. An FMLA investigator would clearly see that the mandated taking of sick days was related to the incidence of FMLA which, I feel, would lead her to conclude that you have in effect penalized the employee for taking FMLA. Even though your policy requires the taking of the sick leave, had it not been for FMLA the employee would have received the perfect attendance. So, your policy is forcing the days to be tallied as 'sick' which excludes the ee from the reward program. If audited, I think you'd be in a no-win. Hope I'm wrong.

It's really a downer for everybody when people struggle for perfect attendance and the $100 check that goes with it, only to see a couple of 'not so worthy' employees off on extended comp/FMLA for a faked accident collect the reward while sitting on the porch.

njjel

We have a policy that states the ee must work the day before and the day after a holiday in order to be paid. Therefore, if an ee is out on unpaid FMLA leave, they do not receive pay for the holiday.

Don D

I may be double posting but did not find my last one. I don't think Leslie's semantics will stack up favorably in an audit. The issue will in my opinion be, why did the individual not qualify for the perfect attendance? The answer to the question will be, because she took sick leave. A further analysis will find the root cause to be the use of FMLA, which forced sick leave, which resulted in her becoming ineligible for a reward that she would have received had it not been for the event of FMLA.

Anita

I agree with Don th-up

Leslie

You both may be right, but in the long run use of sick pay 99.9 percent of the time is voluntary - they need the money and put in their paper work before anything is said.

Policy states the company "may" require FMLA folks to use sick and/or vacation time. Thus far I've never had to require it. I have, on two occassions, inferred that it was required. But so far - xpray - no one on FMLA has qualified for perfect attendance.

As you say Don, it would certainly dishearten the person who had to use two sick days, to see someone out for 12 weeks receive the check when they wouldn't.

njjel

My interpretation of the regulation (Section 825.220(1)(c)is that if there is a benefit such as attendance bonus and they are on FMLA leave they are entitled to it. However if you have an existing policy that states the "day before/day after" they are not required to receive pay for the holiday. the reg. states ...."if an employee on leave without pay would OTHERWISE be entitled to full benefits (other than health benefits), the same benefits would be reqired to be provided to an employee on unpaid FMLA leave...."

psrcello

We also pay holiday pay if the employee is out on FMLA on the day before or after a holiday.

We have another wrinkle with compensation and FMLA - under our union contract, an employee is entitled to time and a half on Saturday and double time on Sunday if they have no "unexcused" absences Monday through Friday. FMLA is an excused absence. Therefore, an employee can call in under FMLA two days during week, work Sunday, and lose no pay! This happens frequently among our maintenance department employees, where making up missed hours is virtually a necessity.

Don D

Precisely! This may just be the nature of the union mentality. Where I last worked our contract said basically the same thing as yours does. Then when we were fortunate enough with sales to go to production 24/7, folks soon got tired of so much work and such big checks. They began to manage 'excused absences' during the first part of the week, then show up on Sat and Sun and get the premium pay and make what they would have made during a typical 5 day, full week. I think in the textbooks this is called 'creative attendance' or 'Union wage-management 101'.

Glenda

Another interesting FMLA question---our attendance policy allows the employee to remove a point if employee completes one full calendar month of "perfect attendance" including no missed punches, no use of personal hours,etc. One employee is on intermittent FMLA. The policy states that use of FMLA will not allow employee to remove a point. This particular employee has missed work for non-FMLA instances and currently has 5.5 points. At 10 points employment will be terminated under the policy. Do you think the policy should be changed to allow employees who use FMLA to eliminate points? In the past year she has completed only one month with "perfect attendance".

LindaS

Based on the regs. regarding bonuses, it seems that your policy regarding "perfect attendance" would not be in compliance.

Glenda

Using FMLA does not effect our attendance bonus. Actually it is only the elimination of points on the atttendance policy.

psrcello

We're not quite as generous in our attendance policy - it takes 90 days under our policy to earn back a point.

However, we use 90 calendar days, rather than 3 calendar months, as the measurement period. We account for FMLA days by not counting them toward the 90 days - for instance, if the employee misses time on 3 days, they need to have 93 days occurrence free before they earn back a point. This gets around the problem of knocking an employee out for a whole month if they miss time under FMLA (which, I agree, is not in compliance with the regs), or giving employees points back for a whole month that they might have missed under FMLA leave.

We may be "treading on the edge" here, but so far, we've had no complaints.

Don D

Glenda I agree with Linda. Use of FMLA cannot in any way be used to penalize an employee. Your system does that in that use of FMLA is actually being 'held against' the employee through a policy that enables FMLA use to negatively impact their point balance. My vote is that you should immediately get that policy in compliance with the law.

SandiF

Agree with Don. Just consider any FMLA leave taken as time worked in regard to attendance policies/rewards.