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WORKER USED UP 480 HOURS OF LEAVE – AND NOW WANTS 120 HOURS MORE

QUESTION: One of my employees has been taking FMLA twice a week for months to take her baby to a specialist for some kind of disorder. As you can imagine, her constant absences have been hard to handle. As of last week she had used all 480 hours of her FMLA (12 weeks), and I told her she needed to make other arrangements for her baby, or start looking for a new job. She claims that because she normally would work 50 to 60 hours each week as a manager, she still has at least 120 hours of FMLA left. I’ve never heard of this before.

 

ANSWER: It may be news to you – and many others – but the amount of FMLA time for which a worker is eligible can vary.

The Family and Medical Leave Act, passed in 1993, not only allows new parents time off to bond with a newborn, it also provides workers up to “12 workweeks” of leave in any 12-month period to care for a spouse, son, daughter, or parent with a serious health condition. Recent guidance from the Wages and Hours Division reiterates that the number of hours in a “workweek” depends on the number of regular, non-overtime hours usually worked.

An employee, like your manager, who regularly works 50 or more hours per week (not on overtime) will be entitled to more FMLA hours off per year, based on earned FMLA of about 600 hours (50 hours per week x 12 weeks). Of course, that means that employees who regularly work less than 40 hours per week would be entitled to fewer hours of FMLA per year.

While a standard workweek in excess of 40 hours is most common among salaried workers, hourly workers required to work mandatory overtime on a regular basis may also be eligible for the additional FMLA hours based on their usual workweek.

When a new mom or dad takes 12 consecutive weeks off to spend with a newborn, they are taking 12 workweeks off, regardless of how many hours they averaged in a given week. The situation is different when, as you describe, a worker takes FMLA on a “reduced leave schedule” — that is, a regular reduction in hours weekly or daily hours worked – for a relative’s planned medical treatment for a serious condition. Then, as you’ve found out, the actual number of hours in the employee’s particular workweek becomes relevant. Your manager is likely correct: She hasn’t used up her FMLA.

But you may not be stuck with a part-time manager for several more months. The FMLA allows employers an out when a worker’s need for a reduced schedule may last a long time. Section 2612(b)(2) of the law allows an employer to ask a worker to transfer temporarily to “an available alternative position … for which the employee is qualified” that offers equivalent pay and benefits and that better accommodates the employee’s need for time off. Is there any way you could transfer your employee to a different position temporarily, and let someone else take over as manager pro tem?

Remember, time off under the FMLA does not have to be paid, although an employer can ask leave-taking workers to use their accrued paid vacation, personal leave or sick time as part of their 12 weeks’ – we mean workweeks — of FMLA.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084
(248) 970-0310
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[email protected]