Occasional Fmla

Managing intermittent FMLA leave has many challenges for employers, not the least of which is handling the issue of compensation for exempt employees taking such leave. Since FMLA leave is generally unpaid, yet salaried exempt employees are entitled to their salary regardless of hours worked, how should you proceed when an exempt employee takes intermittent FMLA leave?

In a CER webinar titled “FMLA Intermittent and Reduced Schedule Leave: How to Stop Abuse and Overcome Compliance Challenges,” Drew L. Alexis outlined the answer to this very question. Here’s what he had to say on the matter:

The lament of employee leave administrators across the land has long been dealing with intermittent leave, particularly when it is unforeseeable. While the federal FMLA entitles eligible employees to leave on an intermittent basis for certain reasons, handling that leave has posed its share of issues. The Family and Medical Leave Act (FMLA) is a federal law that allows eligible employees to take up to 12 weeks of unpaid medical leave a year. Since Texas has no maternity leave laws, many new mothers and fathers use this leave all at once after the birth of a child. However, the law also allows employees to use their 12 weeks intermittently.

“There are some unique compensation rules that deal with exempt employees. Obviously we know that FMLA leave is generally unpaid. And we also know that other rules require that salaried executive, administrative, professional, or computer employees are generally paid based on a salary-basis test and a salary-level test which require a certain salary paid every week, regardless of the number of hours worked in the workweek. (That’s distinguishing them from hourly employees).

“Deductions from wages under certain circumstances, based on hours worked, of course can jeopardize the classification of a position as exempt and the Department of Labor has a unique rule for the FMLA that basically indicates that if an employer does treat FMLA time worked intermittently or, for an employee working a reduced schedule, if they reduce the salary of an exempt employee based on intermittent or reduced leave schedule under the FMLA, the employee does not lose the FLSA exemption. So those kind of salary deductions can be made without risking claims for overtime from the employee.”

Compensating Exempt Employees Out on Intermittent FMLA Leave: What are Your Options?

When tackling the issue of determining the correct compensation for exempt employees on intermittent FMLA leave or on reduced schedule leave, what are your options?

• Convert the exempt employees to hourly employees during the period that the intermittent FMLA leave is being sought. You will still be meeting your FLSA obligations this way.
• Keep the exempt employees as salaried and make appropriate adjustments to the salary on the basis of the employee’s regular workweek and hourly rate. You do this by applying their hourly rate to the missed hours in the workweek.

The second option is better, but it raises the question of determining the hourly rate for the exempt employee. Typically, salaried employees are told either an annual, monthly, or weekly salary in their offer letter – it is not typically communicated as an hourly rate (though if you did communicate an hourly rate, use this figure). In these cases where the hourly rate is not in the offer letter, you can next look to the pay statement, which may state an hourly rate attributable to the compensation for that exempt employee.

“If neither the pay statement nor the offer letter confirm the hourly rate then you really need to have some conversation with the employee about what hourly rate you intend to apply, rationale for determining that hourly rate, and you need to identify that in a written agreement at the time that your employee is scheduled to take this intermittent or reduced leave schedule so that it’s clear what compensation effect will be.” Alexis advised.

The second option still is imperfect, however, because we typically don’t have records of hours worked for exempt employees. To solve this, you can track these hours in general for purposes of intermittent FMLA leave administration. Alternatively, if you haven’t done that, then you must agree with the employee what their “normal” schedule or average hours worked will be – because you’re going to both need to agree on the hourly rate and what hours are not being paid. Be sure to document this agreement in writing.

For more information on calculating compensation for exempt employees on intermittent FMLA leave, order the webinar recording. To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Drew L. Alexis is Of Counsel with Los Angeles-based Kinaga Law Firm. He represents management in a wide range of employment disputes before federal and state courts and administrative agencies, including in the areas of leave of absence management, discrimination, harassment and retaliation, wrongful termination, and wage & hour claims.

An FMLA qualifying leave is an unpaid leave, which means that you will not receive your regular compensation during your leave.7 min read

1. Do You Get Paid for FMLA Leave?
2. What Is FMLA Leave?
3. How Does FMLA Leave Work?
4. What Does FMLA Cover?
5. Which Employers Are Required to Offer FMLA?
6. What Employees Are Eligible?
7. When Can You Use FMLA Coverage?
8. What Limitations and Restrictions Impact FMLA Leave?
9. How to Determine the Applicable 12-Month Period for FMLA Leave
10. Can an Employer Require That You Return From FMLA Leave Early?
11. Can Employers Refuse Your Request for FMLA Leave?
12. Can You Lose Your Job by Taking FMLA Leave?
13. Can Employers Deduct Pay for Intermittent FMLA Hours Used?
14. What Is Short-Term Disability?
15. Can You Use Both FMLA and Short-Term Disability at the Same Time?

Updated August 14, 2020:

Do You Get Paid for FMLA Leave?

As an employee, you may have wondered “do you get paid for FMLA leave?” An FMLA qualifying leave is an unpaid leave, which means that you will not receive your regular compensation during your leave. Some employers have their own benefits policies that help employees financially while on FMLA leave. However, this is not federally mandated.

FMLA is a required benefit that you may have heard of when you first started working at your job. Unless you've needed to use it, it's possible that you don't really understand how FMLA works and what's covered.

What Is FMLA Leave?

FMLA leave stands for the Family & Medical Leave Act of 1993. It was created to ensure that employees would not lose their jobs if they needed time off to take care of their own medical needs or those of their family. It is a federally protected right for U.S. employees.

How Does FMLA Leave Work?

Some employers may require that you use vacation days, sick days, or other types of paid time off that you have accrued while on leave for up to 60 days. You can check with your company's human resources department to see what policies the company currently has in place regarding leave. Under the FMLA, it is okay for employers to require that you use all of your paid leave first before using FMLA time.

Some companies may have policies in place to offer cash payments for employees that opt out of the company health care program. These cash payments, unlike health benefits, do not have to continue during FMLA leave. Other benefits can be continued as long as you continue to pay for them.

Since FMLA leave doesn't qualify you to re-enroll in health insurance when you return to your regular job, be especially careful about canceling your health insurance. You may not be able to enroll again for health insurance until the next open enrollment period if you let the coverage lapse.

It is important to note that if you've earned a bonus before taking FMLA leave, you should still be able to receive that bonus. An employer is not allowed to use FMLA leave as a justification for denying you your bonus.

What Does FMLA Cover?

FMLA provides employees covered by the law with up to 12 weeks of unpaid leave each year. This leave is job-protected, so when you return from leave, you'll still be employed. Additionally, health benefits must be continued for the employee and the employee's family. This means that the employer must pay its share of health care benefits even while you're out on leave.

You can use the 12 weeks of FMLA leave all at once or as needed throughout the year. Just because you use six weeks of it now, it does not mean that you cannot use the other weeks later in the year. FMLA was designed to help families and recognizes that unforeseen circumstances don't only happen once a year.

Which Employers Are Required to Offer FMLA?

Not all employers are legally required to offer FMLA. It only impacts certain employers that meet minimum requirements. Companies that must comply with FMLA regulations include:

• Public agencies, such as government organizations and public schools.
• Private sector companies with more than 50 employees for at least 20 weeks in the current year or last year.

Small employers are not required to comply with the FMLA. This includes companies with less than 50 employees. Check with these employers directly to see if they have any of their own unpaid leave policies in place.

What Employees Are Eligible?

While the FMLA only applies to certain employers, it only impacts certain employees, as well. To be eligible to take advantage of the FMLA unpaid leave program, you must work for an employer that is required to comply with the regulation. You must also work within 75 miles of a company location where there are at least 50 employees. This means that even if you work remotely for a large corporation, you may not be eligible.

Additionally, you must have worked for the employer for at least 12 months and at least 1,250 hours in the last year. If you just started working for a company, you may not be eligible for FMLA leave. This means that you'll have to work out arrangements directly with your employer and are not covered by FMLA protections.

When Can You Use FMLA Coverage?

Only certain circumstances qualify for FMLA coverage. You'll need approval to ensure that your specific family health crisis is covered. Here are some of the reasons that would be covered under the FMLA regulations:

• Employee is not able to go to work because of a serious medical situation that impacts the employee.
• Employee needs to provide care for an immediate family member with a serious medical condition, which does not include in-laws.
• Employee can have up to 60 work days of FMLA protection after the birth or adoption of a child to care for the newborn.
• Employees who recently gave birth, via regular delivery or Cesarean.
• Employee's family member called to active duty in the National Guard or Reserve for a last minute, urgent situation.

What Limitations and Restrictions Impact FMLA Leave?

While you're out on FMLA, you'll have to provide medical certification. If you fail to do so or lie about the reasons why you need to take FMLA leave, the FMLA protections will no longer cover you. Make sure to comply with any requests in a timely manner, so your unpaid leave benefits from the full protections offered by the federal law.

Additionally, you may have restrictions in place on whether or not you can have outside employment during your time on FMLA leave. You would need to check with your employer about their policies. Just remember, while there might be a policy in place regarding outside employment, the employer cannot otherwise restrict your outside actions during FMLA leave.

How to Determine the Applicable 12-Month Period for FMLA Leave

Your employer will determine when the 12-month period starts and ends for FMLA leave. This should be a consistent policy in place for all employees across the workplace. Some common ways to determine this include:

• Employer selected year
• Fiscal year
• Anniversary of employee hiring
• Start of first FMLA leave
• Backward from an employee's first FMLA leave

Can an Employer Require That You Return From FMLA Leave Early?

If you've gone ahead and taken care of the relevant paperwork, provided appropriate medical documentation in a timely manner, and meet the criteria for protection under the FMLA, your employer cannot require you to come back to work. This is true even if they ask you to come back to work on a part-time basis. However, if you fail to meet your obligations or the criteria for FMLA protection, this may not be the case.

Can Employers Refuse Your Request for FMLA Leave?

If your employer is required to comply with the FMLA, they cannot deny your request for FMLA as long as you comply with the employer notice and medical certification requirements outlined in the FMLA. Additionally, you must not have already used up all of your FMLA leave time in the past 12 months. If you have, the FMLA protections do not apply.

Can You Lose Your Job by Taking FMLA Leave?

Fmla Intermittent Leave Guidelines 2019

The purpose of the FMLA is to protect your job during a necessary leave. This means that you will still have a job when you return from your medical leave and that employers cannot use the fact that you took an unpaid medical leave to make employment decisions, such as whether to promote or fire you. Employers cannot legally retaliate against you if you report a violation of these rules.

In some instances, employers can deny reinstatement if you worked in a highly paid, salaried role where you were identified as a key employee that the business couldn't operate without. However, you should ask your employer about this rare instance before you take your FMLA leave, so you fully understand the process.

It's important to note that the employer has to offer you a job when you return from FMLA leave, but not necessarily your old job. The FMLA regulations state that the employee must be given an opportunity equivalent to their original job, especially in terms of compensation, benefits, and other factors. If you were to take FMLA leave from a management role, you should be offered another management role upon your return.

If you find yourself in a situation where you need to take intermittent FMLA leave through the year, your employer may require you to transfer to another available position within the company. This happens when the business has difficulty operating with an employee that's only available intermittently. While FMLA protects your employment status, it does recognize that some roles may be better suited for intermittent FMLA needs.

Can Employers Deduct Pay for Intermittent FMLA Hours Used?

Whether your employer will deduct pay for intermittent FMLA hours you use, for doctor's appointments, etc., will largely depend on the employer, your compensation structure, and what policies your employer has in place. Under the FMLA, the employer can deduct payment for unworked hours for salaried employees who use FMLA hours. For hourly employees, the employer will not be able to deduct compensation for intermittent FMLA hours that you use, since you won't be clocking into a time clock to record those hours.

However, many employers recognize the inconsistencies in a salaried employee's schedule and may opt to not deduct anything from your pay to accommodate for intermittent FMLA leave. This is because as a salaried employee, you may work more hours one week than the next. The employer may have a policy in place that differentiates between full time and intermittent FMLA leave, where employees take only a few hours at a time.

What Is Short-Term Disability?

Occasional Fmla

Some companies have a short-term disability benefit that they enroll employees in. If you have access to a short-term disability plan, this may enable some of your unpaid FMLA leave to be paid, even if it's only on a part time basis. For most companies, you must work six months before short-term disability benefits kick in.

Can You Use Both FMLA and Short-Term Disability at the Same Time?

Yes, you can use FMLA leave and your short-term disability plan at the same time. FMLA is designed to protect your employment status, while short-term disability provides you with some of your lost income. This means that you can use these benefits simultaneously.

Occasional Fmla Benefits

Each company processes short-term disability differently, so it is important that you discuss your options with your employer. There may be a waiting period before you can make a short-term disability claim. Employers may require that you use your accrued PTO first.

Intermittent Fmla Paperwork Fmla Forms

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