FMLA Tracking

hulawho

We have an employee out on FMLA who worked an average of 54 hours per week the 12 weeks prior to his leave.  We are a production facility and he sometimes works 6-7 days a week. Is his time off still calculated at 12 weeks of 40 hours for a total of 480 hours or does the overtime get calculated into the allocation?   He is on intermittent leave and I want to be sure that I get the time calculated correctly.  

Thanks!

Donna Bitner

 

regdunlop

donna, i didn't know the answer off the top of my head and did a little research.  i found this.

 

http://www.dol.gov/esa/whd/opinion/FMLA/prior2002/FMLA-107.htm ;

 

Under the FMLA, the term
“workweek” is the employee’s usual or normal schedule (hours/days per week)
prior to the start of FMLA leave, and is the controlling factor for determining
how much leave an employee is entitled to use when taking FMLA leave
intermittently or on a reduced workweek schedule for a serious health condition.
If overtime hours are on an “as needed basis” and are not part of the employee’s
usual or normal workweek, or is voluntary, such hours would neither be
counted to calculate the amount of the employee’s FMLA leave entitlement nor
charged to the employee’s FMLA leave entitlement. Where overtime hours are not
part of the employee’s usual or normal workweek, disciplinary action may
not be taken against an employee for being unable to work overtime as a result
of limitations contained in a medical certification obtained for FMLA purposes.
If the normal workweek is greater than 40 hours, hours worked above 40 hours
must be included in determining the maximum amount of leave available to the
employee under the FMLA. For example, if an employee normally works overtime in
three of every four weeks, then such overtime hours are part of the usual and
normal workweek schedule of the employee and would be included in
calculating the amount of FMLA leave available to the employee. This would be
the case even where the employer may not know in advance of the workweek when
overtime will be scheduled or how much overtime will be worked that week as
overtime hours may be based upon business demand that varies from week to week.
 In calculating the amount of
FMLA leave available to an employee whose 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. In her letter, the constituent indicates that
ten to twenty hours of overtime hours not worked due to an FMLA-qualifying
reason are now being charged against the employee’s FMLA 12-week leave
entitlement. Let’s assume that an employee’s schedule over the 12 weeks before
starting FMLA leave shows five weeks at 50 hours, four weeks at 60 hours, and
three weeks at 40 hours for a total of 610 hours. Under the FMLA, only the
amount of leave actually taken may be counted towards the 12-week entitlement of
FMLA leave. If overtime hours are part of an “eligible” employee’s usual and
normal workweek and the employee is unable to work overtime hours because of
an FMLA qualifying reason, then any overtime hours not worked may be counted
against the employee’s FMLA leave entitlement so long as the employer designates
the absence as FMLA leave. Using the above mentioned example, if the employee
was not able to work overtime hours over the 12-week period due to an
FMLA-qualifying reason (e.g., serious health condition), then 130 hours (610 –
480 [40 hours x 12]) may be charged to the employee’s FMLA leave entitlement.
Thus, any pro-rata reduction in total leave entitlement during intermittent FMLA
leave or reduced leave schedules should be based on the employee’s normal
workweek – even if it exceeds 40 hours. Similarly, the amount of FMLA leave
available to the employee must be based upon the number of hours worked in the
normal workweek – even if it exceeds 40 hours.