New FMLA rules

6375839

I am confused by something I read on the BLR FMLA resource center.  It was in the Nov 17 - New FMLA Rules: More Important Changes.  It states as follows"

"The final rule also clarified that accounting for leave need not be in the smallest increments that the employer's timekeeping system can handle, but rather in the smallest increments the employer accounts for in other types of leave, provided it is not greater than one hour. This is a change from proposed regulations.

The new rules prohibit employers from charging employees for period of time that they are working (e.g., stop working ½ hour before end of shift, cannot be charged for one hour of leave)."

I interpret the first section to mean that if we count attendance, funeral leave, etc in hours, then we can count FMLA leave in hours, but how does that correspond to the next line that if they leave work a 1/2 hour before quitting time cannot count it as 1 hour although it would be under our other policies.  The 2 seem to be contradictory to me, so what am I missing and under what circumstances can you use the hour increment? 

 

SFbay

Basically the regulations give us a little flexibility in how we account for FMLA leave but prevent us from charging employees for FMLA leave when they were in fact working. Say your time system is able to handle FMLA leave in 6 minute-blocks. However for other types of leave (vacation, sick time, etc.), the smallest increment you account for is 60 minutes. While the new regulations allow you to account for FMLA leave in 60-minute blocks (because that's the smallest increment you account for other types of leave and it is not greater than 1 hour), you cannot charge the employee 60 minutes of FMLA leave if he/she left 30 minutes early at the end of a shift (because the employee was working for part of that last hour). The regulations spell out a scenario that might help answer your question. Here's a clip of the relevant part:

"Employers are not required to account
for FMLA leave in increments of six minutes or even fifteen minutes
simply because their payroll systems are capable of doing so, and the
regulatory language in the final Sec. 825.205(a) does not so require.
What matters is how the employer actually accounts for the leave ...

The final regulation adjusts the proposed language to make
clear the employer must account for the intermittent or reduced
schedule leave under FMLA `'using an increment no greater than the
shortest period of time that the employer uses to account for use of
other forms of leave provided it is not greater than one hour.''
Accordingly, while employers may choose to use a smaller increment to
account for FMLA leave than they use to account for other forms of
leave, they may not use a larger increment for FMLA leave. Thus, if an
employer uses different increments to account for different types of
leave (e.g., accounting for sick leave in 30-minute increments and
vacation leave in one-hour increments), the employer could not account
for FMLA leave in an increment larger than the smallest increment used
to account for any other type of leave (i.e., 30 minutes).
Additionally, under no circumstances can an employer account for FMLA
leave in increments of greater than one hour, even if such increments
are used to account for non-FMLA leave. Employers may choose to account
for FMLA leave taken in any increment not to exceed one hour as long as
they account for leave taken for other reasons in the same or larger
increment. The Department has also modified the final rule to recognize
policies which account for use of leave in different increments at
different points in time, thus, permitting employers to maintain a
policy that leave of any type may only be taken in a one-hour increment
during the first hour of a shift (i.e., a policy intended to discourage
tardy arrivals). As a further point of clarity, the final rule changes
the current and proposed rules' language of `'provided it is one hour
or less'' to `'provided it is not greater than one hour.'' The
Department emphasizes that in all cases employees may not be charged
FMLA leave for periods during which they are working. For example, if
an employee needs FMLA leave due to the flare-up of a condition 30
minutes before the end of the employee's shift, the employee may not be
charged with more than 30 minutes of FMLA leave, even if the employer
otherwise uses one hour as its shortest increment of leave, because the
employee has already worked the first 30 minutes of the last hour of
his or her shift. If such a flare up occurred at the beginning of a
shift, however, the employee could be required to take up to one hour
of FMLA leave in accordance with the employer's leave policy, provided
the employee does not work during that hour."

6375839

I most be dense, but I am still unclear.  Let me give an example:  if an employee normally works to 5:30 and leaves at 2:55, in your understanding of the rules, what would the FMLA time be counted as if we account for attendance, attendance bounus, and all other leave in hour increments (except vacation which is accounted for in days)?  A

Also is there a diffence in accounting for the actual leave time used and accounting for the attendance bonus which we normally count in hours?