intermittent

hrjax

Intermittent FMLA is a headach. Within our organization we have a difference of opinion. An employee is certified as intermittent FMLA. The employee may be exempt or non-exempt. If this employee misses a partial day (example 3 hours) on Monday, the employee is prohibited - forbidden, to be able to "make up the time" prior to the end of the week. My frustration is, we allow employees to "make up time" if they take their dog or cat to the vet, but we won't allow them to make up their time for FMLA. Managements comment on this was, "if we allowed them to make up the time, they would never reach the 480 hours". I strongly disagree. The empdloyee has 480 hours within 12 rolling months. They are only using max 5-10 hours per month.

I stand on the part of the reg which states, that you can not treat an employee on FMLA differently then a non-FMLA employee. Allowing one employee to make up time for missing 3 hours because they had to go home to meet the cable man, and then denying another the ability to make up 3 hours becuase they are on FMLA and went to the Doc, sure looks discriminatory to me.

marc

We had an interesting discussion regarding this very topic a few days ago. You should do a search for intermittent leave and check out the comments.

We currently allow EEs to make up time and not charge FMLA, but that is not necessarily a good practice. The thread to which I am referring prompted me to review our policy. You can allow the EE to make up the time and still count the time off as FML.

hrjax

You can allow the person to make up the time and still count it as FMLA? I was under the impression if there is no time missed then there is no FMLA hours. Where did you find the informaiton to support your policy?

If it were the company policy to forbid any employee for making up time for other absences, then I agree that an employee could not make up time for FMLA. BUT if the company policy is that an employee can make up time for any reason other than FMLA -- then it seems to me we have discrimination.

Don D

>You can allow the person to make up the time and
>still count it as FMLA? I was under the
>impression if there is no time missed then there
>is no FMLA hours. Where did you find the
>informaiton to support your policy?
>
>If it were the company policy to forbid any
>employee for making up time for other absences,
>then I agree that an employee could not make up
>time for FMLA. BUT if the company policy is
>that an employee can make up time for any reason
>other than FMLA -- then it seems to me we have
>discrimination.


I agree with Marc. I also agree that it may not be a good practice. Reading the Act carefully, you will see that there is no mention anywhere of 'making up time'. Therefore, that falls to company policy. You will not find anything in the CFR to 'support his policy' since the concept of making up time is not addressed. In my opinion, FML stands alone and speaks for itself in terms of the number of hours the ee was approved to be absent pursuant to his approved application. An in that context, I would count the hours, regardless of whether or not he was allowed to work over later during the week. If a DOL investigator ruled this in violation, I think she would be guilty of legislating, since the legislation does not address it.

hrjax

Our situation is that, employees are permitted to "make up" non-FMLA time, but are prohibited from "making up" FMLA time. Does this sound discriminatory?

Don D

It 'sounds' and 'is' discriminatory, and is prohibited by the Act. Let them make up the time and charge the time taken against their total FMLA entitlement. In this scenario, they need not necessarily 'lose hours' or 'miss pay' in order for the time to be charged against FMLA. Tell the boss it is illegal to treat them differently and that they will still be charged with the FMLA leave, even though they might make it up.

Margaret Morford

I want to clarify one thing from the posts above. If employees do make up the time, you cannot charge them for FMLA because they have not really taken any leave...they've just changed the hours of their working schedule. If you are counting hours on exempt employees, forcing them to make up time in non-FMLA situations, I think you run the risk of losing the exemption because you are treating them like non-exempt employees. Only in the case of intermittent FMLA are you permitted to count hours on a exempt and not lose the exemption.

Hope that helps.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

SMace

Margaret, I'm not sold on your interpretation of the FMLA. I would argue that they are taking leave from their regularly scheduled work time. Allowing them to make up time would fall under FLSA or state wage laws, not FMLA. Where did you get this info? Is it from the regs, a court decision or a DOL interpretation?

Margaret Morford

You can't say that they've taken leave if they work their requisite number of hours - They simply have a fluctuating schedule. I'd welcome some of the Attorney Editors weighing in on this.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Don D

VMiller, Missouri Attorney, answered this very question less than a month ago. He disagrees with Margaret's interpretation, if I read him correctly.

Don D

I looked back and cannot swear it was VMiller. I do know, however, that we had this same discussion a month or so ago. It was my position then that the FMLA should not be charged if the employee worked the assigned number of hours and the company didn't really suffer because of his absence. I was overwhelmingly vetoed and I thought by an attorney. The research hounds on here can find that thread. I don't know which it was.

cctsphr

We have had similar situations with exempt employees and our attorney agress with Margaret - they had just changed the hours of their work schedule.

SMace

Sounds like we may have a future Supreme Court scenario brewing.