According to the U.S. Department of Labor, an eligible employee is entitled to up to 12 workweeks of Family Medical Leave Act (FMLA) leave for most qualifying reasons, or up to 26 workweeks of FMLA leave for military caregiver leave.
The employee’s actual workweek is the basis for determining the employee’s FMLA leave entitlement. An employee does not accrue FMLA leave at any particular hourly rate.
FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases – even less than an hour. The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour.
If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15 minute increments and vacation leave in one day increments), the employer must allow FMLA leave to be used in the smallest increment used for any other type of leave.
Similarly, if an employer allows for use of leave in different increments during specific times of the day (for example, requiring a one hour increment of leave at the start of the shift and using 15 minutes increments for leave at other times), the employer may use the same increment for FMLA leave at those specific times of the day. An employer may always allow FMLA leave in shorter increments than used for other forms of leave, but no work may be performed during any period of time counted as FMLA leave.
Only the amount of leave actually taken may be counted against an employee’s FMLA leave entitlement. Where an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek. The amount of FMLA leave taken is divided by the number of hours the employee would have worked if the employee had not taken leave of any kind (including FMLA leave), to determine the proportion of the FMLA workweek used.
Time that an employee is not scheduled to report for work may not be counted as FMLA leave. If an employer temporarily stops business activity and employees are not expected to report for work for one or more weeks (e.g., a school that closes two weeks for the winter holiday, or a plant that closes for a week for repairs), the days the employer’s business activities have stopped do not count against the worker’s FMLA leave.
When a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave. However, when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.
When an employee’s schedule varies so much that the employer is unable to determine how many hours the employee would have worked during the week the employee takes FMLA leave, the employer may use a weekly average to calculate the employee’s FMLA leave entitlement. The weekly average is determined by the hours scheduled over the 12 months prior to the beginning of the leave and includes any hours for which the employee took any type of leave.
Required overtime hours that are not worked by the employee because of an FMLA-qualifying reason may be counted as FMLA leave. However, voluntary overtime hours not worked due to an FMLA-qualifying reason may not be counted as FMLA leave.
Calculating how much time an employee has available under FMLA can be a daunting task, especially when an employee took FMLA 12 months prior to the most recent request for FMLA. In that situation, the employee may be gaining FMLA eligibility back on a day-by-day basis.
Simply insert the number of hours the employee typically works per week – such as 35, 37.5, 40, and then insert the hours taken per day. The calendar will calculate the FMLA for you.
As always, if you have any questions about FMLA, contact VMLIP’s Director of Human Resources Tina Stevens. Additional FMLA resources can be found here and here.
Interactive FMLA Usage Calculator