If a custodian with a bad back sits down during his coffee break, can the school count that short break as FMLA leave? As crazy as that sounds, a recent opinion letter from the Department of Labor’s Wage and Hour Division says that maybe you can.
Qualified employees are entitled to up to 12 weeks of FMLA leave. Under some circumstances, employees can take FMLA leave by the day rather than by the week. An employee is only able to take FMLA leave in periods of hours or minutes when the leave is taken on an “intermittent basis” either because it is medically necessary or voluntarily agreed to by the employer:
“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.”
This means that if an employer permits employees to take sick leave in 15-minute increments, then intermittent FMLA leave can be taken in 15-minute increments. If you require sick leave to be taken in half-day increments, then intermittent FMLA leave can be taken in one-hour increments since one hour is the largest increment permitted by the regulations.
Breaks as Intermittent Leave
In a situation addressed by the recent DOL opinion letter, the employee was taking a 15-minute break every hour due to a serious health condition. This meant that the employee was only working 6 hours out of an 8-hour shift. The Wage and Hour Division concluded that if the employee needs these breaks due to a medical condition that qualifies for “intermittent leave,” the breaks can properly be classified as unpaid breaks that the employee is taking as intermittent leave under the FMLA.
There’s an important caveat to that: the breaks are only unpaid to the extent that the breaks are above and beyond what is normally compensated by the employer. Assume Employee A takes three short breaks for no particular reason and is paid for those breaks, and Employee B takes four short breaks due to a serious health condition that qualifies for FMLA leave. Employee B’s first three breaks are paid, since that is the normal practice for paid breaks by the employer. In short, the “extra” breaks would be unpaid intermittent FMLA leave.
We have received questions on an increasing number of chronic, ongoing, and intermittent medical leave requests. This new Wage and Hour Division opinion letter is a great reason to take a look at your FMLA policy as it relates to regular and irregular breaks given to hourly staff--including breaks they take without permission but with your knowledge.
FMLA leave can be tricky in the simplest of circumstances, but employers have a legal and practical reason to be sure employee leave is designated as FMLA leave when the FMLA applies. Employers also need to consider how the employee’s paid sick leave and vacation leave will be used during the FMLA leave period. If you are questioning your employment break practices and/or have any questions about how the FMLA applies to your staff, you should contact your school attorney, or call Karen, Steve, Bobby, or Tim.