By Roger Hood | As we celebrate the 20th anniversary of the Family and Medical Leave Act, new regulations issued in March clarify tracking for employers with hourly employees who take time off for qualified FMLA leave. The new regulations serve as a reminder to employers that they must track using the smallest increment of time utilized for other types of leave that are offered to employees. By way of example, if an employer generally calculates sick leave in half-hour increments, the employer must also calculate intermittent FMLA leave in half-hour increments.
Furthermore, employers must be vigilant to count only time actually taken as FMLA leave against an employee’s FMLA entitlement and not count any time the employee worked for the employer against an employee’s FMLA leave entitlement. For example, if an employer usually accounts for FMLA leave in one-hour increments but an employee returns to work from a qualifying leave in a half-hour and immediately returns to work, the employer must only count a half-hour against the employee’s leave entitlement, not the full hour.
Employers are well-advised to double-check their policies – and handbooks – to be sure they are tracking properly. There may be inconsistences in the current FMLA policy when compared to other types of leave. Arguably, the employee can bring a claim if the employer fails to track correctly. The bottom line is that employers can’t discriminate by having a policy for FMLA leave that is inconsistent with other unpaid leave programs such as bereavement or personal time off.
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