part timer worker for FMLA?

njjel

An ee works MWF (3 days/week) and misses WF and M. She did not come in to work today. When does her leave begin for FMLA. Yes she qualifies.

HRinFL

The first day she was out do to the FMLA qualifying reason. I would count from the Wednesday she was out.

Are you sure it is a wualifying reason? Send the paperwork and see what the Dr. says before you apply the absences to FMLA.

pork1

NJJEL: I would seek out the physician's determination as to the start date. The 2nd part of your concern is charging the part-time days to FMLA. I believe I would only charge out and pay her for the medical days off under the intermittent conditions. Thus your 12 weeks is going to be extended beyond the 12 weeks if she/he actually is required to stay out the entire FMLA period. Our medical leave policy pays in concert with FMLA.

PORK

njjel

Pork - So because she only works 3 days a week she gets more than 12 weeks of leave?

pork1

As an intermittent FMLA exercise, 12 weeks is 84 days divided by 3 days a week is a potential 28 weeks of FMLA leave for an ee who other wise qualifies.

This how I would handle the situation. I searched my FMLA manual and could not find a written paragraph. I am continuing to go through my manual and if I find it, I will come back and let you know what I find.

PORK

marc

Looks to be some confusion about how much time this person qualifies for. In this case, it looks to be 12 weeks at 3 days per week. She does not get 12 weeks at 5 days per week. Further refinement down to hours may be necessary for intermittent tracking. If she works 8 hours per day for those 3 days, she then qualifies for 288 hours of leave. In an intermittent case, that can stretch out for a long time, but bottom line, she only qualifies for the hours she would normally work in a 12 week period.

njjel

Marc that was what I thought and I wanted to check w/the forum to make certain that she was not eligible for 60 days leave. I do think that she is eligible for 12 weeks of leave at 3 days per week. If anyone knows different, please yell!

pork1

NJJEL: Section 825.205. "Only the amount of leave actually taken while on an intermittent or reduced leave schedule may be charged as FMLA leave. This means, for example, that a full-time employee who normally worked eight-hour days switched to a half-time (four hour per day)reduced leave schedule, only 1/2 of FMLA leave could be charged to FMLA (and, at that rate, it would take 24 weeks to exhaust the Employee's entitlement under FMLA".

Granted your situation appeared to me, to be very similiar to this situation as outlined.

Further: "An employee's FMLA entitlement may only be reduced for time which the employee would otherwise be required to REPORT FOR WORK". If not scheduled to report to work two days a week, then you can only use the 3 days per week to calculate the 12 week entitlement.

Now you know more about why I recommended the above post. You can not go wrong by using the words in the regulation to understand or to become less confused about FMLA. If an employee is not scheduled to report for work, the time period involved may not be counted as FMLA leave. Sec 825-200(f). Which tells me to determine the total 12 week entitlement as 84 days divided by 3 days per week and the end result is 28 weeks to complete the 12 week entitlement. I have not seen any court cases which support this nor do I want my company to be the test case. Therefore, we will lean on the side of the employee.

Which then takes you to the ability or possible need to transfer this person to a position which might better accomodate her need for FMLA and part-time employment.

PORK

njjel

So Marc and Pork differ in their opinions. I will have to drag out my FMLA resources and investigate further. Your assistance is appreciated.

marc

Pork knows his stuff, so I may not be understanding his point of view. Here is a reg reference that might help.

Check out 29 CFR 825.205 paragraphs (b) and (d) which state:

(b) Where an employee normally works a part-time schedule or variable hours, the amount of leave to which an employee is entitled is determined on a pro rata or proportional basis by comparing the new schedule with the employee's normal schedule. For example, if an employee who normally works 30 hours per week works only 20 hours a week under a reduced leave schedule, the employee's ten hours of leave would constitute one-third of a week of FMLA leave for each week the employee works the reduced leave schedule.
(d) If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period would be used for calculating the employee's normal workweek.

Seems clear to me that the 12 weeks allowed in the act refers to 12 weeks of their normally scheduled workweek. If that was 3 days a week, then they get 12 weeks of 3-day a week time to utilize for FML. You can translate that to hours as indicated in my earlier post.

pork1

NJJEL: We are coming from the same reg and the same sections, so it must be a matter of reading and making your on determination as to what constitutes a 12 week entitlement. Marc wants to hold the determination to no more than 12 weeks; I say the words leave me to believe that our government intent is to make this law employee friendly, thus the 12 weeks is capable of expanding to an additional amount of weeks to constitute the 12 week entitlement which to me under your situation comes to a potential 28 weeks or less. I take the words as written.

From the other side of the coin, suppose the individual normally is scheduled to work 55 hours a week does that mean that you can charge off the overtime hours as scheduled hours and shorten the 12 weeks of entitlement. The answer is no! The congress meant for it to be 12 weeks.

I would hope that you will find clearer wording in your research. If you do let us know. I very well could be wrong; I have only had to administer 1 intermittent case and it was for a full time employee and it was for treatment of cancer. The treatment was successsful and he is back to driving his FEED Truck, full time. So the law does have merit, but I would not want to be on the wrong side of the law and attempt to defend our actions, should we have attempted to cut the employee off from company support in his efforts to get well and back to work!

PORK

marc

Lots of room for interpretation.

As to the 55 hour week, if that is their normal work week, then 12 weeks of 55 hour weeks gets you to the same place. It is still 12 weeks.

The rub comes in an intermittent situation. With the 55 hour week person, if the medical situation reduced the weekly hours to 40 - no OT, then 15 hours of FML would be used. This would be toward a 12 week total of 55 x 12, or 660 hours of time available to protect. So if the medical condition prevented OT, and the EE's schedule had to be reduced to 40 hours - you could not fire them for being unable to work the 15 hours of OT. That 15 hours is protected by FML.

If that person was off completely - working no hours of a normal 55 hour week, then each week missed is 55 hours of FML protected time. 12 weeks at that rate gets you 660 hours.

The point is, the qualified EE gets to protect 12 weeks of normal work, whether it is 25 hours a week or 55 hours a week, still only 12 weeks. It only gets tricky if it is intermittent leave, which often means an hourly calculation. When that happens, you compare the hours worked against the normally scheduled hours. The difference is the FML time utilized.

lnelson

I am agreeing with marc on this - Sorry Pork1.
But other than intermittent leave which can extend beyond 12 weeks. The regs clearly state the protection for 12 weeks not 480 hours. So my interpetation would be the same as marc.

12weeks @ 24 hrs per wk nromally worked = 288 hrs

jmcaa

I'm agreeing with Mark also. We had an employee who was only working 30 hours per week, qualified for FMLA, took time on an intermittent schedule. I contacted our lawyer and you go by the 12 weeks of their normal work week, therefore if she was off for 10 hours a week she would use 1/3 of a FMLA week.

njjel

I believe the misunderstanding (now that I've reread the regs again) is that this ee is NOT working an intermittent schedule but is working a regular part time work schedule of 3 days per week. I agree that when the LEAVE is taken intermittently the leave time may exceed 12 weeks but FMLA leave is 12 weeks of whatever hours they work. If the ee works 8 hours a day, 7 days a week, they get 7 days a week off for 12 weeks. At least this is the interpretation I'm going to go with for now. Again, thanks for all of the input.

pork1

NJJEL: Ok, I must be reading the words differently than the majority; my way is employee friendly which allows for this company & me, as the manager for FMLA, to satisfy our need to take care of our employees and it provides a longer period of time before we would have to pull the trigger and terminate an ill employee that failed to get well and return within the 12 week period. As I previously stated, you need to make up your own mind and go with it, which would set up your precedent track for how you will handle any future case with similiar circumstance.

This forum is so good for us all! You can bet I will go back and re-read all of the words to see where you guys & girls are coming from in this debate!

Best wishes to all & may each of you have a Blessed day.

Pork

pork1

After several days of continuing to study on these words, I have found the words that lead me into the interpretation, as previously stated.

These additional words are provided for your perusal and edification. 825.205 Tells me "Only trhe amount of leave actually taken while on an intermittent or reduced leave schedule may be charged as FMLA". If I work MON< WED< and Friday< and see my doctor for medical treatment on Tue and Wed for Chemo therapy the company can not take either one of these two days as FMLA. I was not scheduled for work. If a full time employee switches to a reduced leave schedule (half time), only 1/2 week of FMLA leave could be charged each week (and at that rate, it would take 24 weeks to exhaust the employee FMLA leave entitlement if no other FMLA condition or situation came into play.

The regulations also cover periods of time when the company may have shut down for maintenance or repair these days and weeks are also not charged to a FMLA leave period. Again the circumstance goes back to being able to take one days lost work for one days loss of FMLA against an entitled 12 weeks of days and hours used. If the employee is not scheduled to report to work, the time period involved may not be counted as FMLA leave 825.200(f).

I hope this also helps you to sort through the situation. I am going to move on because this post is getting overtaken with other new subjects.

PORK