In an earlier post, I reviewed the basics steps to take to avoid Family and Medical Leave Act (FMLA) mishaps and best practices to follow when eligible employees request FMLA leave. But, matters involving FMLA leave can quickly become complicated, especially in regards to the implementation of intermittent FMLA leave. Managing intermittent FMLA leave creates unique challenges for employers, especially with an increasing remote workforce.
Managing Intermittent FMLA Leave for Remote Workers
Earlier this year, the Department of Labor (DOL), the agency responsible for enforcing FMLA compliance, issued new guidance for determining eligibility for remote workers and FMLA leave. Specifically, the DOL explained that, in determining eligibility with respect to the requirement that at least 50 employees be employed within a 75-mile radius, the relevant worksite is “the office to which they report or from which their assignments are made.” Based on this guidance, more remote employees will likely be eligible for FMLA than previously presumed.
With respect to intermittent FMLA leave for remote employees, employers need to take extra care to ensure that timekeeping is properly recorded. If digital timekeeping isn’t an option, it would be helpful to create a spreadsheet and require the employee to record intermittent FMLA time each day. The employee would need to turn that spreadsheet in at the end of each week to human resources to allow for proper tracking and recordkeeping of FMLA leave.
Intermittent FMLA Leave for Exempt Employees
To start, regardless of whether an employer decides to deduct from an exempt employee’s salary during the intermittent FMLA leave, the employee must track intermittent FMLA leave hours taken to allow the employer to properly track and maintain records for the employee’s leave and know when the leave has been exhausted.
This may be problematic as employees who are exempt don’t generally track hours worked. Employers should discuss this requirement with their employees before leave starts, so employees know why they are tracking their hours.
While an employer generally can’t deduct from the salary of an exempt employee based on quantity of work without losing the FLSA exemption, the employee’s use of FMLA is one exception. Before doing so, the FMLA regulations require an employer and employee to agree on the employee’s normal schedule or average weekly hours. They will also need to agree on the reduced weekly leave schedule and reduce that agreement to writing which is maintained in the employee’s confidential medical file. This will allow the employer to know the salary deduction to be taken for the intermittent leave.
Keep in mind that this may not be possible in situations where intermittent FMLA isn’t predictable.
Can an Employee Make Up Intermittent FMLA Leave?
Whether an employee can make up intermittent FMLA leave depends on the employer’s policy and practice. The FMLA doesn’t require that an employee be permitted to make up intermittent FMLA leave time, unless the employer has a policy that allows employees using non-FMLA leave the ability to work extra hours and make up missed time.
In other words, employers are required to extend the same benefits to employees on FMLA leave as they provide to employees not taking leave.
Employers should adopt a clear policy ahead of time that defines what make-up time will allow employees to do. Will it just allow employees to replace lost wages? Or will it also allow employees to save FMLA leave? Regardless of what the employer wants to allow, the policy should be clearly stated.
Key Takeaways
As you can see, managing intermittent FMLA leave for employees comes with different challenges. These challenges don’t take into consideration various state leave statutes that may be in place.
For example, aside from a paid sick leave statute, Arizona doesn’t have state specific requirements governing medical leave. Regardless, there are still many complications of implementing intermittent FMLA because they’re fact specific. So, if questions arise, consult with experienced employment counsel for guidance.
Jodi R. Bohr is a shareholder with Tiffany & Bosco, P.A., and a contributor to Arizona Employment Law Letter. She practices employment and labor law, with an emphasis on counseling employers on HR matters, litigation, and workplace investigations. She may be reached at jrb@tblaw.com.
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