(a) Minimum increment. (1) When an employee takes FMLA leave on an
intermittent or reduced leave schedule basis, the employer must account
for the leave using an increment no greater than the shortest period of
time that the employer uses to account for use of other forms of leave
provided that it is not greater than one hour and provided further that
an employee's FMLA leave entitlement may not be reduced by more than
the amount of leave actually taken. If an employer accounts for use of
leave in varying increments at different times of the day or shift, the
employer may not account for FMLA leave in a larger increment than the
shortest period used to account for other leave during the period in
which the FMLA leave is taken. If an employer accounts for other forms
of leave use in increments greater than one hour, the employer must
account for FMLA leave use in increments no greater than one hour. An
employer may account for FMLA leave in shorter increments than used for
other forms of leave. For example, an employer that accounts for other
forms of leave in one hour increments may account for FMLA leave in a
shorter increment when the employee arrives at work several minutes
late, and the employer wants the employee to begin work immediately.
Such accounting for FMLA leave will not alter the increment considered
to be the shortest period used to account for other forms of leave or
the use of FMLA leave in other circumstances.
(2) Where it is physically impossible for an employee using
intermittent leave or working a reduced leave schedule to commence or
end work mid-way through a shift, such as where a flight attendant or a
railroad conductor is scheduled to work aboard an airplane or train, or
a laboratory employee is unable to enter or leave a sealed ``clean
room'' during a certain period of time, the entire period that the
employee is forced to be absent is designated as FMLA leave and counts
against the employee's FMLA entitlement.
(b) Calculation of leave. (1) When an employee takes leave on an
intermittent or reduced leave schedule, only the amount of leave
actually taken may be counted toward the employee's leave entitlement.
The actual workweek is the basis of leave entitlement. Therefore, if an
employee who would otherwise work 40 hours a week takes off 8 hours,
the employee would use \1/5\ of a week of FMLA leave. Similarly, if a
full-time employee who would otherwise work 8-hour days works 4-hour
days under a reduced leave schedule, the employee would use \1/2\ week
of FMLA leave. Where an employee works a part-time schedule or variable
hours, the amount of FMLA leave that an employee uses is determined on
a pro rata or proportional basis. For example, if an employee who would
otherwise work 30 hours per week, but works only 20 hours a week under
a reduced leave schedule, the employee's ten hours of leave would
constitute one-third (\1/3\) of a week of FMLA leave for each week the
employee works the reduced leave schedule. An employer may convert
these fractions to their hourly equivalent so long as the conversion
equitably reflects the employee's total normally scheduled hours.
See also, Sec. Sec. 825.601 and 825.602, special rules for schools.
(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.
(3) If an employee's schedule varies from week to week to such an
extent that an employer is unable to determine with any certainty how
many hours the employee would otherwise have worked (but for the taking
of FMLA leave), a weekly average of the hours scheduled over the 12
months prior to the beginning of the leave period (including any hours
for which the employee took leave of any type) would be used for
calculating the employee's leave entitlement.
(c) Overtime. If an employee would normally be required to work
overtime, but is unable to do so because of a FMLA-qualifying reason
that limits the employee's ability to work overtime, the hours which
the employee would have been required to work may be counted against
the employee's FMLA entitlement. In such a case, the employee is using
intermittent or reduced schedule leave. For example, if an employee
would normally be required to work for 48 hours in a particular week,
but due to a serious health condition the employee is unable to work
more than 40 hours that week, the employee would utilize eight hours of
FMLA-protected leave out of the 48-hour workweek (\8/48\ = \1/6\
workweek). Voluntary overtime hours that an employee does not work due
to a serious health condition may not be counted against the employee's
FMLA leave entitlement.
[73 FR 68088, Nov. 17, 2008]
