Q: One of our employees was at full-time status (40 hrs/wk.) six months ago when he was granted intermittent FMLA leave for a GI issue that flared up from time to time. He took 120 hours of FMLA leave (or three weeks) through last month when he transferred to a part-time position (20 hrs/wk.). He continues to require FMLA leave, but we are not sure whether to calculate the intermittent leave based on his former full-time hours or current part-time hours.

A: This situation actually is covered by an FMLA regulation. Under 29 CFR 825.205(b)(2):

If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.

In this question, the employee has reduced his weekly hours worked from 40 to 20 hours. And he already has used the equivalent of 3 weeks of FMLA leave. So, 9 weeks of FMLA leave remain in his FMLA year. Moving forward, you will use his part-time schedule to calculate any intermittent FMLA leave. Thus, he would have 180 hours remaining.

Keep in mind, though, that the Department of Labor requires us to calculate FMLA leave in workweeks. It may be easier to use hours of leave from an FMLA administration standpoint, and this approach would work just fine for an employee who works the same number of hours every week. But what about your employee who works 20 hours one week and 25 hours the next? In this situation, you should calculate his FMLA intermittent leave not in “hours” but as a fraction of that particular workweek in which he is absent.

For instance, if an employee is scheduled for 20 hours one week and takes intermittent leave for a total of 10 hours that week, he has used 1/2 of a workweek for FMLA purposes. If an employee is scheduled for 25 hours the following week and takes intermittent leave for 5 hours that week, he has used 1/5 of a workweek for FMLA purposes. Generally speaking, you look at the hours schedule for the employee for that particular week and determine the FMLA usage accordingly.

What about calculating FMLA leave for an employee who works a varying workweek? According to the DOL, this term should be used sparingly and only industries like the railroad industry where engineer and other employees’ schedules can vary widely such that you can’t determine with any degree of certainty what an employee’s schedule will look like in any given week. See my prior post for calculating a varying workweek.

This is riveting stuff, isn’t it? Who says the FMLA ain’t sexy . . .