Intermittent FMLA and Exempt EE

Ruskanen

I thought I read about this recently, but I couldn't find the post.

I have a salaried employee whose schedule is 8am-5pm. Her mother is in the hospital and she has been coming and going. My question, if she starts work at 6:00am and does not take a lunch, and wants to leave at 2:00pm, do you count the hours from 2pm to 5pm as FML or since she put in her 8 hours already, do you not count the hours as FML? Do you look at the hours they are absent during their schedule, or do you look at how many hours they are not working?

marc

This topic has come up more than once. To my recollection, there is a split of opinions as to whether or not an EE can "make up" FML hours. Some say that the made up hours only mean no pay is lost while others disagree saying that because the EE was not there during the normal shift that the hours lost count as FML.

We have always counted only hours lost through not being here, but I see the logic of counting hours missed from the regular schedule. Perhaps you will hear from others and find some opinions that resonate.

Don D

The law does not address the issue of 'made up' work hours.

The law does allow the employer to track and consider the hours as FML. The value of that for the employer is that the clock ticks, the hours mount up, and the leave exhausts during the rolling 12-month period and the issue of repetitive FML is removed for that 12 months, once the 480 hour threshold is met.

The law does not address, mention or contemplate that for the employer to count time as FML, it (the employer) must suffer a net loss of the employee's work hours.

I suggest, as I always do, that you do the paperwork, approve the leave request, track and count the FML related hours missed and of course, advise the employee that their FML has expired at the point they reach 480 hours absence due to the situation. In so doing, you have granted the ee what the law requires you to grant and you have protected your business against future claims or requests from the employee for entitled time off due to FML covered circumstances. In doing all this, rearrange hours and work schedules as you like and don't look for a correlation between that and FML.

Ruskanen

So, if the employee leaves at 2:00pm, you're saying that you would count 3 hours of FML since that's how much of her regular schedule she is absent, even though she has put in 8 hours of work for the day already?

Don D

Not necessarily. What I'm saying is that the FML Act ALLOWS you to do that. Now, if you have restructured someone's work hours on a long term basis and have given them a new work day assignment, not just to accommodate FML, we should not care what they do after they leave work. The question is a philosophical one and one an employer can go either way with. We cannot break labor laws. But, we can manage them to our advantage occasionally.