“Ask Sarah” Column

Dear Sarah,

We have an employee who recently requested intermittent FMLA leave. He is non exempt and works a non-typical schedule in that he is regularly scheduled for more than 40 hours per week, usually around 45 hours per week. I know that FMLA provides eligible employees up to 12 weeks of protected leave, but I often hear it alternatively described as three months, 90 days, or when dealing with intermittent leave—480 hours. How do we calculate how much FMLA leave our employee is entitled to when 12 weeks of their particular schedule does not equal 480 hours?

Math is Not My Strong Suit

Dear Math is Not My Strong Suit,

There must be something in the water. My Family Medical Leave Act (“FMLA”) treatise has been open on my desk for weeks, with odd questions and unusual issues popping up over and over again. This is one such question—probably not going to come up often, but a big deal for those it relates to.

To start with, I am assuming your organization is covered by FMLA, that the employee is eligible for FMLA leave, and that he has provided appropriate medical documentation supporting the need for intermittent leave. So, the only question is—how do you calculate how much intermittent FMLA leave this employee is entitled to?

FMLA and its Regulations provide that an employee is entitled to 12 workweeks of leave per year and that an employee does not accrue FMLA leave at any particular hourly rate. So, the primary focus in your calculations is the employee’s workweek.

Practically speaking, if the employee is taking leave in increments of a full day, or longer, then there is no need to calculate the number of hours the employee has available because the simplest method is to calculate the time using fractions of the workweek. This method is recommended by the U.S. Department of Labor (“DOL”) in a 2002 Opinion Letter. For example, if the employee is out for two days out of a week, that is 2/5 of a workweek. The employer can add the fractions up (or full weeks) until reaching 12 weeks.

If the employee is taking FMLA intermittent leave in hourly increments, it is more complicated. DOL addressed this issue in its 2002 Opinion Letter, and again very recently in a February 2023 Opinion Letter, reminding employers that the number of hours of FMLA an employee is entitled to is dependent on how many hours the employee works in a workweek.

DOL used the following example to illustrate the calculation: an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period (50 hours * 12 workweeks = 600 hours). If the 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 should be used. This also means that if your employee works fewer than 40 hours per week, they are entitled to fewer than 480 hours of FMLA leave.

So, bottom line is that you should focus your calculations of FMLA leave use on the employee’s workweek. And in the situation you asked about, if your employee will need intermittent leave on an hourly basis, he is entitled to 540 hours of FMLA leave in a 12 month period (45 hours * 12 workweeks = 540 hours).

“Ask Sarah” is prepared by Sarah Glaser, Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other employment matters, please contact Sarah at 512.322.5881 or sglaser@lglawfirm.com.

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