I recently posted a question about an employee coming in late and applying her FMLA. In your response you mentioned if an employee works 10 hours per week, the employee would be eligible for 120 hours FMLA. I would like to get clarity on this topic. Does this mean if I were to work 10 hours per week I would be eligible for a maximum of 120 hours (12 work weeks). I have been grading everyone off 480 hours regardless of his/her schedule in the 12 month calendar maximum. So if she worked a total of 25 hours a week (5 hours a day 5 days a week)…she would be eligible for 300 total hours. Is my interpretation correct?
Your new, improved FMLA interpretation is absolutely right!! The federal FMLA grants employees up to 12 weeks of unpaid, job-protected leave. Under FMLA, what constitutes a *week* depends upon the number of hours that the employee normally works each payroll week, when not on FMLA.
There is absolutely no mention of *480 hours* in the FMLA law or the Department of Labor regulations for FMLA. An employee who normally works 10 hours per week is entitled to 12 weeks of FMLA, or 10×12= 120 hours of FMLA total.
In your example, an employee who works 25 hours per week is entitled to 12 weeks of FMLA, or 25×12=300 total hours of FMLA leave. If the employee uses 301 hours of FMLA, she can be disciplined for *missing* 1 hour of work. If she uses all 300 hours of FMLA and continues to be tardy on a regular basis, she can be disciplined and even terminated for excessive tardiness.
Again, if you check the federal regulations, they constantly refer to *12 weeks* of FMLA. There is no mention of 480 hours. Read more about FMLA at: http://www.dol.gov/esa/whd/fmla/
Two things we would like to mention here: Basically, by permitting every employee to take up to 480 hours of unpaid, job-protected leave in the past, you have set a precedent of giving empoyees who work less than 40 hours per week, additional unpaid leave. You need to formally change that policy, or you could be guilty of discrimination. Simply send out a memo to every employee that effective at the beginning of the next payperiod, employees will not receive any additional unpaid leave, over and above that provided by the FMLA or similar laws. Have each employee sign the memo and return it to you, indicating that they have been informed of this change in policy. (You should do this even if your employee handbook only mentions FMLA and not additional unpaid leave.)
Also, under some circumstances, an employer may have to grant a disabled employee additional unpaid time off, or a flexible schedule, under ADA, the Americans with Disabilities Act. In January 2009, the EEOC expanded the definition of *disability* to include almost any impairment of function (except normal eye glasses and contacts.) So if this employee is disabled, she may request a schedule change or a flexible schedule as a reasonable accommodation. However, an employer does not have to offer an accommodation if it is an undue hardship. And it sounds like having this employee constantly come to work late is an undue hardship for the business. (An employer always has to grant FMLA leave, even if it is an undue hardship.)
Please feel free to post any additional questions you might have.
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