Key to remember:
FMLA: 12 workweeks isn't always 480 hours
07/17/2024
Employees often work more than 40 hours per week
Victor was an exempt supervisor who worked about 60-70 hours per week.
One year, in late March, Victor began taking time off for a chronic condition. Under the federal Family and Medical Leave Act (FMLA), Victor needed planned medical treatments 1-4 times per month, resulting in him working only five days (i.e., 40 hours) per week.
The employer used a 40-hour workweek in calculating Victor's FMLA entitlement. By the following January, the employer calculated that Victor had used his 480 hours of FMLA leave and would have no more FMLA leave available until late March.
Because Victor still needed the treatment, he took paid time off (PTO), which he also exhausted.
In early March, Victor was given a new work schedule that required him to work nine hours per day, six days per week. Victor e-mailed Brian, his boss, and Stephanie, the company leave administrator, saying that per his FMLA certification, he couldn't work that schedule.
Brian replied that he would contact Stephanie to confirm Victor's FMLA accommodations. Stephanie responded that Victor did not have any more FMLA leave available at that time.
On April 1, Victor tried to use FMLA leave. Stephanie told him he would need to provide a new certification, and that his request would be in "pending status" until she received the certification.
Victor responded to Stephanie's message saying that he needed to use FMLA leave that day. Stephanie replied that his FMLA request was not yet approved. Stephanie also e-mailed Brian to inform him that while she was processing
Victor's FMLA leave request, Brian should not approve any PTO requests from Victor. Later that day, Victor left work before the end of his scheduled shift and missed a meeting.
The employer felt that Victor violated the company's code of conduct and violated its policy that supervisors were to remain at work until their subordinates finished their shift.
Employee parts ways and files suit
After further leave kerfuffle, Victor and his employer parted ways, and Victor filed suit, arguing that he was entitled to more than 480 hours of FMLA leave based on his workweek of 60-70 hours. His added time off, therefore, should have been protected.
The employer tried to argue that, because the certification showed that Victor could work 40 hours per week, that was the basis for the 480 hours of leave calculation.
Owens v. The Dufresne Spencer Group, Northen District of Illinois, No. 22-c-2801, June 17, 2024.
The basis of an employee's leave entitlement is the actual workweek, and that the entitlement therefore should be calculated based on the amount of time that the employee would otherwise work if not on leave. This could result in more or less than 480 hours of FMLA leave.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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