From the Hotline: Counting Missed Work Time for FMLA

Question: How would an employer count missed time for an employee on FMLA when they have a non-traditional work schedule: 7 days on/7 days off. Would it be 12 weeks worked, or 60 work days?

Answer: FMLA leave designation and availability is based on the employee’s actual work week (see below):

“An employee is entitled to up to 12 workweeks of FMLA leave for most qualifying reasons or up to 26 workweeks of FMLA leave for military caregiver leave. The employee’s actual workweek is the basis for determining the employee’s FMLA leave entitlement. An employee does not accrue FMLA leave at any particular hourly rate.”

Reference resource:  http://www.dol.gov/whd/regs/compliance/whdfs28i.pdf

Based on your example of an employee who works 7 days on and then 7 days off, if this employee was to need FMLA leave, you would need to monitor and calculate the time off based only on the days the employee would have worked.

For example:  Your employee advises you that he will need to take 6 weeks off for FMLA-qualifying leave.  The doctor’s notice will most likely require he take these 6 weeks off in a row.  Based on the fact that his regular work schedule during those 6 weeks would be one week on and one week off, he would in fact only be using 3 weeks of his allotted 12 weeks of FMLA leave.  The other three weeks would not be regular work weeks, so you cannot apply the FMLA leave to these weeks.