Stuff happens. In our office, there are countless ways life might come before work. While seeking FMLA leave for a serious health condition, Karen was discovered through surveillance shopping for shoes and having a wonderful time. Is this problematic? What about Bobby posting videos of himself on Facebook drinking and dancing at a local bar while claiming FMLA leave for his “bad back?”
Part 5: May the Odds Be Ever in Your Favor
Just as you thought the FMLA series was a bad dream from 2022, we are back for more! As a refresher, Part-1 discussed FMLA basics and the type of family and health events that trigger FMLA eligibility. Part-2 focused on employer notice obligations and special FMLA rules for instructional employees at schools. Part-3 focused on the mechanics of FMLA leave. Part-4 addressed special school rules for instructional employees and laid out some common scenarios a school might encounter. Today’s installment discusses a recent U.S. Department of Labor’s Wage and Hour Division opinion regarding FMLA leave. May the odds be ever in your favor as you navigate the impact this opinion has on FMLA leave calculation.
Calculating Leave. When calculating FMLA leave, federal law uses “workweek” as the basis for leave entitlement. As a reminder, employees may use FMLA leave on an intermittent or reduced schedule leave basis in periods of weeks, days, hours, or smaller increments based on the shortest period of time the employer uses for other forms of leave provided the leave is not greater than one hour. However, this is generally only permitted when necessary based on the serious health condition and when deemed necessary by the employee’s applicable health care professional. Additionally, if an employee is normally required to work overtime, the FMLA provides that an employee with an FMLA-qualifying health condition may count FMLA-protected leave towards the overtime hours. What does this mean practically? A school employee, such as a custodian, who is required to work more than eight hours a day but has an FMLA-qualifying health reason may work a reduced schedule and use FMLA leave to account for the remainder of the shift.
Furthermore, the opinion explicitly states an employee may continue to use FMLA leave for an indefinite period of time as long as the employee would continue to be eligible and has a qualifying reason for leave. This has the potential to result in a situation where a school employee could work a reduced schedule indefinitely while utilizing their FMLA leave. The opinion also reiterates the FMLA provides that an employee is entitled to 12 workweeks of leave per year. Therefore, an employee who is regularly scheduled to work more than 40 hours of work per week is entitled to more than 480 hours of FMLA per 12 month period. A custodian who is regularly scheduled to work 50 hours per week could be eligible for 600 hours of FMLA leave in the event their doctor certifies that they need intermittent leave.
Conclusion. If you have any questions about the FMLA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.