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June 18, 2012
How Do You Calculate Intermittent FMLA Leave?

How do you calculate FMLA leave usage? For block leave, it’s pretty straightforward, taken as a number of weeks. For intermittent FMLA leave or reduced schedule, however, it’s a little more challenging. In a BLR webinar titled "FMLA Intermittent and Reduced Schedule Leave: How to Stop Abuse and Overcome Compliance Challenges," Drew L. Alexis outlined some guidance for us on the proper way to calculate the FMLA leave taken in these scenarios.

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Calculating FMLA Leave: Examples

Standard workweek: "There’s a couple keys as to how you make your calculation." Alexis told us during the webinar. "One is you have to look at your employee’s regular workweek schedule, and then you have to ask what percentage of the regular workweek constitutes leave under an intermittent or reduced leave schedule." When an employee works fairly standard hours, this results in straightforward calculations.

Fluctuating, unpredictable schedule: "If the employee’s schedule fluctuates from week to week and the employer cannot determine with certainty how many hours the employee would work in week employee is taking FMLA leave, then the regulations say that the employer must determine a weekly average." Alexis advised. You do this by going back to the previous 12 months measured from date of the commencement of the FMLA leave. Use this data to determine the weekly average. (The weekly average includes all hours during which the employee took any leave – you can’t penalize them for taking time off during that time).

Pending schedule changes: What if the employee’s schedule was going to be modified? If the employer was planning on modifying the schedule during the period that the employee was going to be on intermittent FMLA leave, and the schedule change was going to be permanent or long-term in nature and is unrelated to the FMLA leave, and the employee gave prior notice of the need for FMLA leave, then the hours worked under the new schedule should be used.

For more information on calculating 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.

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