labor lawAdivision of labor law center

A significant change to the FMLA regulations affects how employers must track FMLA leave. This is the fourth in a continuing series of articles on the new FMLA regulations issued by the U.S. Department of Labor, which go into effect  on January 16, 2009.

 

Under the old regulations, an employer had to track FMLA leave using the shortest period of time that their payroll system could track. If the payroll system rounded to the quarter-hour, the employer was required to permit the employee to use 45 minutes of FMLA leave, or 2.25 hours of FMLA leave, on a particular day.

 

The new FMLA regulations in their entirety can be found in the 201 pages of the November Federal Register.

 

Under the 2009 regulations, employers may track FMLA leave using the shortest increment that the employer uses to track other forms of leave, such as vacation or PTO (paid time off), as long as the increment used for FMLA leave is not more than one hour.

 

In the example above, the employer can require that the employee who is 45 minutes late due to an approved FMLA absence, use one hour of FMLA leave and not start work until that hour has passed. However, if the employee is permitted to start work after 45 minutes, she may be charged only with 45 minutes of FMLA leave. In other words, an employee cannot ever be charged for FMLA time when she is actually working.

 

An employer can also track different types of leave in different increments. For example, an employer could require that employees use vacation time in 8-hour days, but permit sick leave to be taken in 2-hour increments. If Jane went home 2 hours early on Wednesday due to illness, she could be charged for 2 hours of sick leave.  If the employer requires PTO or vacation to be used in increments of a half day or greater, then the employer can require the same for FMLA. However, the FMLA leave deducted must still be in hourly increments.

 

Another new provision under section 825.205 of the FMLA, has to do with specialized circumstances when an employee is using intermittent or reduced schedule FMLA leave. If it is physically impossible for the employee to access the worksite after the start of the shift, then the entire period the employee is absent is counted as FMLA leave.

 

The example the U.S. Department of Labor gives is that of an airline flight attendant. If the employee uses 1 hour of FMLA, she misses her scheduled flight. After that hour, it is not possible for her to rejoin the flight in progress. Under the new rules, if the employee missed a 6-hour shift due to that one hour of absence, she could be charged for 6 hours of FMLA leave.

 

However, on normal worksites, an employee must be permitted to resume work at any point during the shift, whenever it is physically possible to do so.

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