Eligible employees are entitled to 12 weeks of FMLA leave per year for qualifying reasons. But how are those 12 weeks counted? Incorrectly answering this question got an employer in trouble when it only counted the employee’s straight time in determining how many hours of FMLA leave the employee was entitled to take.
In a recent decision, the 8th Circuit Court of Appeals (which covers Minnesota) held that an employer unlawfully interfered with an employee’s FMLA rights when he was terminated for excessive absenteeism after the employer claimed he had exhausted his FMLA leave. When a need for overtime arose, employees could volunteer, and the employer would schedule overtime based on the volunteers. Once an employee was scheduled for this overtime, it was no longer voluntary. This means that missed scheduled overtime shifts due to a reason covered by the FMLA were properly counted against his 12 week FMLA entitlement. But, it also means that his overtime should have been taken overtime into account when calculating how many hours of leave he was entitled to take, i.e., he was entitled to more than the 480 hours (12 weeks * 40 hours/week) he would have been entitled to if he did not work any overtime.
If an employee works the same number of hours each week, it is not too difficult to calculate both their FMLA entitlement and their FMLA usage, but it becomes more difficult where, as in this case, the employee’s schedule varies. However, the Department of Labor’s regulations interpreting the FMLA provide for what to do in such a situation, stating that if an employee’s schedule varies to such an extent that the employer cannot determine with any certainty how many hours the employee would otherwise have worked if they hadn’t taken FMLA leave, then the employee’s average hours over the past 12 months should be used in calculating the employee’s leave entitlement.
For questions regarding administration of FMLA leave, contact James Sherman at firstname.lastname@example.org or 952-746-1700.