Shift Swaps

sonny

David S or someone??? We have a firefighter who will be out 5 weeks or so for surgery. Eligible for FMLA. Our CBA allows for shift swaps and he has covered his time off. Do we still put him on FMLA?

Nevada HR

Under our policy, if the employee uses annual leave for the time off, we would not designate FMLA. If they use sick leave we would.

Our reasoning is that it's none of our business what they do on vacation (unless it hit's the front page of the newspaper):)

sonny

Thanks Nevada. .my dilema is that he won't be here, but he won't have to use any sick or vacation time as he covered his abscence with swaps. Bit confusing I know.

cnghr

I would think that if he swapped shifts with someone else to cover the absence, then according to the work schedule, he technically isn't supposed to be there during those five weeks he'll be off after surgery, because he'll be working a different shift. In that case, it wouldn't count as FMLA. I don't think you can count FMLA against hours the employee isn't even scheduled to work.

Nevada HR

Oops! It dawned on me later yesterday that I completely missed your point. Sorry.

I agree with cnghr!

davids

Sonny, we have had that situation come up and did count the time away as FMLA. Our take was that even though the employee was getting paid (as he/she would if using sick or vacation leave), the employee won't be at work due to an FMLA-qualifying event. The employee's union was not pleased with our decision to count the time as FMLA; but did not grieve. I feel reasonably confident that we could defend that decision in a DOL complaint; not as confident as to what an arbitrator would say.

cnghr

Maybe I'm oversimplifying, but I don't understand why it would be counted as FMLA if the employee actually swapped shifts with someone in order to cover the time off. I mean, it seems like once they've swapped shifts, then they've completely taken themselves off the work schedule for time that they'll be off for whatever reason, whether it's an FMLA-qualifying event or not. I guess to me it just seems like they won't actually be missing work, since if they swap shifts won't they ultimately end up working the same amount of hours over the course of the year that they normally would, just not on the same schedule?

NaeNae55

cngr: I think the main thing is the employe won't be at their shift when they were scheduled for it. Whether they got someone to work for them, or you get someone to cover for them, they are not working their schedule.

If my organization allowed employees to avoid using PTO whenever they got their shift covered, then I would allow them to avoid using it when they got their shift covered. Otherwise, I would insist on using PTO.

Just my 2 cents.

sonny

Thank you all. You have helped sort this out in my head. David articulated what I did not not in terms of my take. I KNOW he is gone d/t a FMLA qualifying event. I also understand the logic regarding not being on the schedule so really not absent. sigh. . have I mentioned lately, I need to retire Thanks again. Right now, our labor attorney is leaning towards not counting. Either way, this discussion has helped me. TGIF