This page contains the Department of Labor's analysis of Family and Medical Leave Act regulation 29 CFR § 825.205
published in the Federal Register on November 17, 2008.
Return to 29 CFR § 825.205
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Analysis of 29 CFR §
825.205 (Increments of FMLA Leave for Intermittent or Reduced Schedule Leave)
Section 825.205 explains how to count increments of leave in cases of intermittent or reduced schedule leave.
The Department did not propose any substantive changes to this section, but did propose to move language from current § 825.203(d) to paragraph (a) of this section, and to add the title "Minimum increment.'' It also proposed to renumber current paragraphs (b) through (d) as § 825.205(b)(1), (2), and (3) for purposes of clarity, and to add the title "Calculation of leave'' to paragraph (b), but did not propose any changes to the text of those sections. The preamble to the NPRM discussed the extensive comments the Department had received in response to the Request for Information "expressing concerns about the size of the increments of intermittent leave that may be taken;'' the impacts of the use of unscheduled intermittent leave, particularly on
timesensitive business models; the many suggestions to the record to allow employers to require that intermittent leave be taken in greater increments (e.g.,
two or four hour blocks, or one day or one week blocks) and conversely, the commenters who defended the current rule on minimum increments of leave. The preamble to the NPRM also requested comment on whether to create an exception to the minimum increment rule in situations where physical impossibility prevents an employee from commencing work mid-way through a shift, and asked for comment on whether and how to clarify the application of FMLA leave to overtime hours. The final rule incorporates the proposed changes with additional clarifications, as well as new language addressing physical impossibility, calculation of leave, overtime, and a cross-reference to the special rules for intermittent or reduced schedule leave taken by employees of schools, as described in more detail below.
Paragraph (a) of proposed § 825.205 set forth the general rule from current § 825.203(d) that employers may account for intermittent or reduced schedule leave in the smallest increments used by their payroll systems to account for absences or use of leave, so long as it is one hour or less. The Department again received many comments from employers expressing their concerns about the size of increments of intermittent leave that may be taken, especially when such leave is unforeseeable. At the same time, we also received many comments from employees stressing the importance of their ability to take such leave in small amounts of time when suffering from serious health conditions, or when caring for family members with serious health conditions.
Employers and their representatives argued that it was difficult to manage their workforce needs adequately when employees were permitted to take very small amounts of leave (e.g.,
in
minutes), when they may have policies
for the use of other forms of leave in
larger increments, especially when other
employees were required to fill in for
those who were absent, and that larger
increments of leave would reduce the
current administrative and staffing
burdens placed on employers.
See, e.g.,
National Association of Manufacturers;
Domtar Paper Company; Society for
Human Resource Management; National
Newspaper Association; and Food
Marketing Institute. Both the Equal
Employment Advisory Council and the
Chamber cited members who track leave
in increments as small as six minutes,
which they contend is especially
difficult for FMLA administration. The
National Coalition to Protect Family
Leave asserted that the current
regulation penalizes employers with
sophisticated payroll systems capable of
tracking the increments of leave down
to one minute. The Chamber argued that
increasing the minimum increment
would greatly ease recordkeeping
burdens on employers, reduce the
opportunity for abuse of FMLA leave,
and improve predictability for
employers. The National Association of
Manufacturers stated that a larger
increment would lower the incidence of
what it believes to be employees
improperly using FMLA leave to cover
late arrivals. These employers argued
strongly that the minimum increment
should be enlarged, and suggested
various minimums ranging from two
hours to four hours or a half day.
See,
e.g.,
the Chamber (half day or 1 hour);
Equal Employment Advisory Council
(half day); National Association of
Manufacturers (four-hour or two-hour
increments); Domtar Paper Company
(four hours); Society for Human
Resource Management (half day or two
hours); National Coalition to Protect
Family Leave (same). Indeed, the Delphi
Corporation pointed out that an
employee could use FMLA leave to
cover late arrivals of almost two hours
per day, every day, without ever
exhausting the employee's annual leave
entitlement. The Equal Employment
Advisory Council similarly noted that
"[a]n employee in fact could take one
day off a week as intermittent leave and
still have plenty of FMLA leave left at
the end of the year.'' Finally, some
commenters sought clarification of the
"one hour or less'' language in both the
current and proposed regulation. The
National Coalition to Protect Family
Leave requested that the Department
clarify that "in all cases, regardless of an
employer's payroll system'' an employer
may track leave in increments of "at
least an hour.'' The National Coalition
believed it is "arbitrary'' to require
employers to track leave in the smallest
increments that its payroll system tracks
when that system may not be used to
track FMLA or other leave usage. They
noted that the current requirement by
the Department penalizes employers
who have more sophisticated payroll
systems that can track payroll in
increments as small as one minute, as
compared to employers who do not use
such systems.
By contrast, employee organizations opposed any increase in the increment of intermittent leave, arguing that it would harm employees by forcing them
to take more leave than is medically
necessary and would unfairly diminish
their FMLA entitlement.
See, e.g.,
National Partnership for Women &
Families; American Association of
University Women; AFL–CIO; American
Association of Occupational Health
Nurses. 9to5 cited the example of an
employee using intermittent FMLA
leave in two-hour increments to take her
daughter to cancer treatments, and
contended that requiring such an
employee to use leave in half-day or
larger increments would unnecessarily
diminish her FMLA entitlement. They
also asserted that the longer absences
might be even more disruptive to the
workplace than shorter ones. The
Communications Workers of America
argued that employers are not burdened
by being required to account for FMLA
leave in the same increment used for
other absences, but that employees
would be burdened by increasing the
increment of intermittent leave.
The Department has carefully considered all comments on this issue, and has decided to adopt § 825.205 as
proposed with additional clarifying
language. Both the current and proposed
standard permit employers to limit the
increment of leave for FMLA purposes
to the shortest period of time the
employer uses to account for other types
of use of leave, provided it is one hour
or less. The current regulation at
§ 825.203(d) provides: "an employer
may limit leave increments to the
shortest period of time that the
employer's payroll system uses to
account for absences or use of leave,
provided it is one hour or less.'' As
explained above, the Department moved
essentially this same language to
proposed § 825.205(a) which provided:
"Minimum increment. When an
employee takes leave on an intermittent
or reduced leave schedule, an employer
may limit leave increments to the
shortest period of time that the
employer's payroll system uses to
account for absences or use of leave,
provided it is one hour or less.'' As the
Department stated in the preamble to
the current regulations in 1995: "In
providing guidance on this issue in the
Interim Final Rule, it seemed
appropriate to relate the increments of
leave to the employer's own
recordkeeping system in accounting for
other forms of leave or absences * * *
however, this section will be clarified to
provide explicitly that the phrase 'one
hour or less' is dispositive.'' 60 FR 2202
(Jan. 6, 1995). The preamble to the
current regulation further stated that the
"employer's own recordkeeping system
in accounting for other forms of leave or
absences * * * controls with regard to
increments of FMLA leave of less than
one hour.'' Id.
Because the comments indicate some confusion in practice between the current § 825.203(d) regulatory
language, as carried over to proposed
§ 825.205(a), and the preamble
discussion of current § 825.203(d), the
Department adopts the final rule with
the following modifications. The
Department restates its original view
that "one hour or less is dispositive.''
Employers are not required to account
for FMLA leave in increments of six
minutes or even fifteen minutes simply
because their payroll systems are
capable of doing so, and the regulatory
language in the final § 825.205(a) does
not so require. What matters is how the
employer actually accounts for the
leave. The final regulation eliminates
the confusing and inconsistent
references to either payroll systems or
recordkeeping systems and eliminates
the term "absences'' to further lessen
any confusion and focuses on "use of
leave.'' The final regulation adjusts the
proposed language to make clear the
employer must account for the
intermittent or reduced schedule leave
under FMLA "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 it
is not greater than one hour.''
Accordingly, while employers may
choose to use a smaller increment to
account for FMLA leave than they use
to account for other forms of leave, they
may not use a larger increment for
FMLA leave. Thus, if an employer uses
different increments to account for
different types of leave (e.g.,
accounting
for sick leave in 30-minute increments
and vacation leave in one-hour
increments), the employer could not
account for FMLA leave in an increment
larger than the smallest increment used
to account for any other type of leave
(i.e.,
30 minutes). Additionally, under
no circumstances can an employer
account for FMLA leave in increments
of greater than one hour, even if such
increments are used to account for non-
FMLA leave. Employers may choose to
account for FMLA leave taken in any
increment not to exceed one hour as
long as they account for leave taken for
other reasons in the same or larger
increment. The Department has also
modified the final rule to recognize
policies which account for use of leave
in different increments at different
points in time, thus, permitting
employers to maintain a policy that
leave of any type may only be taken in
a one-hour increment during the first
hour of a shift (i.e.,
a policy intended to
discourage tardy arrivals). As a further
point of clarity, the final rule changes
the current and proposed rules'
language of "provided it is one hour or
less'' to "provided it is not greater than
one hour.'' The Department emphasizes
that in all cases employees may not be
charged FMLA leave for periods during
which they are working. For example, if
an employee needs FMLA leave due to
the flare-up of a condition 30 minutes
before the end of the employee's shift,
the employee may not be charged with
more than 30 minutes of FMLA leave,
even if the employer otherwise uses one
hour as its shortest increment of leave,
because the employee has already
worked the first 30 minutes of the last
hour of his or her shift. If such a flare
up occurred at the beginning of a shift,
however, the employee could be
required to take up to one hour of FMLA
leave in accordance with the employer's
leave policy, provided the employee
does not work during that hour.
The final rule also makes explicit that employers may use a smaller increment to account for FMLA leave, a flexibility
that was implicit in the permissive
wording of the current regulation.
Finally, the final rule provides
additional flexibility in accounting for
FMLA leave by allowing for leave
systems that utilize different increments
at different points of time while
adhering to the principle in the current
regulation that FMLA leave users may
not be charged leave in a larger
increment than users of non-FMLA
leave. The Department remains
committed, however, to the one hour
outer limit on use of FMLA leave and
therefore declines to adopt any of the
comments recommending intermittent
leave be accounted for in larger
increments such as two-hour, four-hour,
or half or full-day increments.
The Department has made one other revision in the final rule to reorganize the text in proposed § 825.205 by
moving the final three sentences from
proposed paragraph (a) into paragraph
(b) in the final rule, where related
concepts for the calculation of the
amount of FMLA leave used are
addressed. The final rule also restores a
cross-reference in paragraph (b) to the
special rules for intermittent or reduced
schedule leave taken by employees of
schools, §§ 825.601 and 825.602.
In the NPRM, the Department also sought comment as to whether, in situations in which physical impossibility prevents an employee
using intermittent leave or working a
reduced leave schedule from
commencing work mid-way through a
shift, an exception should be made to
allow the entire shift to be designated as
FMLA leave and counted against the
employee's FMLA entitlement. In an
opinion letter, the Department had
previously taken the position that where
a flight attendant's need for three hours
of intermittent FMLA leave caused her
to miss her normal flight assignment,
only the three hours needed could be
charged against her FMLA entitlement,
with the remainder of the absence being
charged to another form of paid or
unpaid leave. Wage and Hour Opinion
Letter FMLA–42 (Aug. 23, 1994). In the
preamble, the Department questioned
whether this interpretation was
appropriate, because it may expose
employees to disciplinary action based
on the additional hours of non-FMLA
unprotected leave that they must take.
Employers and employer groups strongly supported the creation of such an exception.
See, e.g., the
Chamber;
Equal Employment Advisory Council;
National Coalition to Protect Family
Leave; Society for Human Resource
Management; Southwest Airlines;
Hewitt Associates. Commenters
representing transportation employers
in particular supported a physical
impossibility exception to the minimum
increment of leave rule. The Association
of American Railroads supported the
creation of an exception but suggested
that it should apply not just where it is
impossible for the employee to return to
the workplace but also where it is
"unreasonable,'' "impracticable,'' or
barred by a collective bargaining
agreement; it also argued that the
exception should include workers in
fixed locations such as train dispatchers
who work in a station or office. The
Chicago Transit Authority argued that
the exception should apply to all "fixed
time work assignments, such as
scheduled public transit runs,'' and that
the minimum time increment should be
the length of the employee's scheduled
run. This, it argued, would protect the
employee's entire absence, and also
allow employers to better plan for and
arrange assignments for entire blocks of
work.
Spencer Fane Britt & Browne suggested that the exception should be expanded to apply in three situations: (1) Where it is physically impossible for the employee to complete the assigned
shift; (2) where another employee was
called in to cover the absence; and (3)
"where an employee is chronically late
to work allegedly because of an FMLA
chronic condition.'' In all three cases,
Spencer Fane contended that it is
"inherently unfair'' and "disruptive'' to
permit the FMLA leave-taker to return
to work mid-shift. The New York City
(NY) Law Department suggested that the
exception should apply to positions
requiring 24/7 coverage where there
must always be someone working, and
that the employee should be charged
FMLA leave for the entire shift even if
only a few minutes of leave are needed.
Most commenters on behalf of employees, on the other hand, opposed creating any exception to the minimum increment rule, and argued that the 1994 opinion letter was correct.
See, e.g.,
National Partnership for Women &
Families; Center for WorkLife Law. The
American Train Dispatchers Association
argued that such a change would "allow
the carriers to charge [transportation]
employees for time that they do not use
for FMLA-related purposes, in
contravention of the statute's language
and intent,'' and cited the example of an
engineer who needed four hours of
intermittent FMLA leave to accompany
his wife to chemotherapy, but would be
charged instead for the entire length of
the engine's trip—up to eight or ten
hours. In its view, this result would
violate 29 U.S.C. 2652, which provides
that FMLA rights "shall not be
diminished'' by collective bargaining
agreements or employment benefit plans
or programs. The AFL–CIO and the
Communications Workers of America
questioned whether employees were
being subject to discipline in such
situations and argued that the statutory
prohibition against interference would
prohibit employers from imposing
discipline on employees who return
from intermittent leave and are ready to
work, regardless of whether the rest of
the shift is counted as FMLA leave or
some other form of leave. The
Communications Workers of America
also argued that air carriers already
routinely handle such situations in
cases of non-FMLA leave by reassigning
workers, allowing them to cover for
each other, or assigning them to
alternative work schedules or
alternative administrative work. The
Center for WorkLife Law argued that the
term "physical impossibility is vague
and overbroad,'' and the creation of
such an exception "will have a
significant and unnecessary negative
effect on caregivers.'' In its view,
foreseeable leave can almost always be
handled in advance by assigning the
employee to an alternative route or shift;
and employees should always be
allowed to resume work mid-shift if
they can reach the worksite.
After reviewing the comments, the Department has decided to include an exception for physical impossibility, which is set forth in § 825.205(a)(2) of the final rule. The Department believes that the existing policy exposes employees to the risk of discipline in situations in which an employee's need for a short FMLA-protected absence
from work actually results in a much
longer absence because of the unique
nature of the worksite. Whether it is a
train that is 300 miles away, or a plane
over the Atlantic Ocean, or a "clean
room'' in a laboratory that must remain
sealed for the entire workshift, some
workplaces exist that prevent employees
from joining (or leaving) the work midway
through the "shift.'' Thus, a threehour
FMLA absence may result in an
employee's inability to work for eight
hours, or until the end of the shift or
route. Where this occurs, the
Department believes that the entire
period of absence should be considered
FMLA leave and should be protected
under the Act. The Department does not
believe that a physical impossibility
exception contravenes 29 U.S.C. 2612(b)
or any other provision of the Act
because only the amount of leave used
will be counted against the employee's
FMLA leave entitlement and the FMLA
does not require employers to provide
alternative work to employees when the
employee is unable to return to his or
her same or equivalent position due to
physical impossibility.
The Department intends the exception to be applied narrowly. The exception is limited to situations in which an employee is physically unable to access
the worksite after the start of the shift,
or depart from the workplace prior to
the end of the shift. Moreover, within
those situations, the exception is limited
to the period of time in which the
physical impossibility remains. Thus,
although the exception may apply to a
flight attendant, train conductor, ferry
operator, bus driver, or truck driver
whose worksite is on board an airplane,
train, boat, bus, or truck or a laboratory
technician whose workplace is inside a
"clean room'' that must remain sealed
for a certain period of time, the
exception will only apply until the
vehicle has returned to the departure
site or while the clean room remains
sealed. For example, the physical
impossibility exception will apply to a
flight attendant until such time as he or
she is able to rejoin his or her crew at
the departure point, which likely is a
longer period of time for a flight
attendant who is scheduled to fly crosscountry
than it is for one who is
scheduled to fly a shuttle between
Washington and New York. Similarly, a
physical impossibility will generally
exist for a longer period of time when
a driver works for an inter-city bus
company than it would when a driver
works for a metropolitan transit system.
In both cases, the physical impossibility
remains until the bus returns to the
terminal; such a return, however, may
take place much more frequently in the
latter example.
Employers may not use this new exception to prevent employees taking intermittent FMLA leave from commencing work late or leaving work early when there is no physical
impossibility preventing the employee
from accessing or leaving the workplace
during the "shift.'' Additionally, even
where physical impossibility prevents
the employee from accessing the
workplace, if the employee is assigned
alternative work (e.g.,
pursuant to a
collective bargaining agreement or
employer policy) only the amount of
leave actually taken may be counted
against the employee's FMLA leave
entitlement. The Department recognizes
that employers may provide alternative
work, particularly where there is
advance notice of the need for leave,
and nothing about this exception
prevents employers from providing such
work. Employers also have an obligation
not to discriminate between employees
who take FMLA leave and other forms
of leave; for example, if they routinely
offer alternative work to employees
returning from short periods of non-
FMLA leave, such as sick leave or jury
duty, then they must also offer such
work to employees returning from short
periods of FMLA leave.
The Department did not propose any changes to § 825.205(b), which deals with calculation of leave. However, a number of commenters reported that
they or their clients have difficulty
calculating leave entitlement and leave
usage, especially for employees who use
intermittent leave, work overtime, or
work part-time, seasonal or irregular
schedules.
See, e.g., Burr & Forman;
TOC Management Services; Equal
Employment Advisory Council; Food
Marketing Institute; the Chamber;
National Coalition to Protect Family
Leave; National Newspaper Association.
The American Postal Workers Union,
Clerk Division, Chicago Region,
complained that seasonal fluctuations in
work hours can lead to employees
receiving different amounts of FMLAprotected
leave depending on the time
of year in which the leave is taken.
The Department has made several revisions to the section entitled "Calculation of leave'' to address issues that arise when an employee's schedule varies. The first clarifies that the method for determining the amount of FMLA
leave taken by an employee is to
compare the number of hours actually
worked by the employee in a FMLA
workweek to the number of hours the
employee would have worked in that
workweek, but for the FMLA leave
taken. The difference is the amount of
FMLA leave taken. That amount is
divided by the number of hours the
employee would have worked had the
employee not taken leave of any kind,
including FMLA leave. The result
represents the proportion (percentage)
of a FMLA workweek that the employee
has taken. The resulting percentage may
be converted to hours for tracking
purposes; any such conversion must
equitably reflect the employee's leave
allotment. An employee does not
"accrue'' FMLA-protected leave at any
particular hourly rate; an eligible
employee is entitled to 12 workweeks of
leave (or 26 workweeks in the case of
military caregiver leave) and the total
number of hours contained in those
workweeks is necessarily dependent on
the specific hours that would have been
worked by the employee. The
Department has also changed the rule
for calculating an employee's leave
entitlement when an employee works a
schedule that varies so much from
week-to-week that no "normal''
schedule or pattern can be discerned,
and the employer cannot determine
with any certainty how many hours the
employee would have worked, but for
the taking of the FMLA leave. In such
circumstances, the Department believes
that calculating a weekly average over
the 12 months prior to the leave period
(rather than just the prior 12 weeks as
required under the current rule) should
give a truer picture of the employee's
actual average workweek.
In the preamble to the proposed rule, the Department clarified its position on when overtime hours not worked due to a serious health condition could be counted against an employee's FMLA
leave entitlement. 73 FR 7894 (Feb. 11,
2008). The issue of overtime is not
addressed in the current regulations, but
was discussed in the 1995 preamble to
the current rule.
See 60 FR 2202
(Jan. 5,
1995) (preamble accompanying current
§ 825.203). Many commenters requested
both that the Department's position be
clarified and that it be included in the
regulatory text, rather than just
addressed in the preamble.
See, e.g.,
Society for Human Resource
Management; National Coalition to
Protect Family Leave; TOC Management
Services. The Department agrees, and
has added a new § 825.205(c), which
addresses when overtime hours not
worked due to FMLA leave can be
counted against an employee's FMLA
entitlement. Consistent with the
discussion in the preamble to the
proposal, the final rule states that where
an employee would normally be
required to work overtime, but cannot
do so because of a FMLA-qualifying
condition, the employee may be charged
FMLA leave for the hours not worked.
This new regulatory section is not a
change in policy but is simply intended
to clarify in the regulations the
Department's existing policy.
Employer commenters generally supported the proposed clarification.
See, e.g.,
Pennsylvania Governor's Office of Administration; Domtar Paper
Company; Society for Human Resource
Management; National Coalition to
Protect Family Leave; TOC Management
Services. For example, the U.S. Postal
Service claimed that "the ambiguity in
the current regulatory language
regarding overtime has hindered efforts
to bring uniformity'' in this area; it
embraced the clarification as
"eminently sensible,'' and "not only
fair, but also necessary.''
Some commenters argued that employers should not be restricted to only counting mandatory or required
overtime hours not worked against an
employee's FMLA entitlement. For
example, the Society for Human
Resource Management and the National
Coalition to Protect Family Leave
argued that employees should be
charged FMLA leave in circumstances
in which an employer rotates overtime
on a volunteer basis among its
employees but employees are subject to
possible disciplinary action for failing to
"volunteer.'' Spencer Fane Britt &
Browne argued that employers should
be able to charge employees FMLA
leave for all overtime hours not worked
even where the overtime at issue is
voluntary, and that failing to do so will
hurt employee morale.
Groups representing employees also generally agreed with the Department's desire to clarify the treatment of overtime, but felt that the preamble
discussion was not as clear as it might
have been. The AFL–CIO simplified the
proposed test to "whether the employee
is required to work the overtime,'' and
noted that the key distinction is
between voluntary and mandatory
overtime, notwithstanding the
Department's "apparent rejection of that
distinction.'' It also asked for more
examples, as did the National
Partnership for Women & Families and
National Federation of Federal
Employees. The Department agrees that
the appropriate focus is whether the
employee would have been required to
work the overtime hours but for the
taking of FMLA leave, and has added an
example to the proposed rule to
illustrate this principle. The American
Postal Workers Union commented that
the proposed clarification will
compound rather than moderate the
administrative complexity of the rule.
Rather than focusing on whether the
employee was required to work, it
suggested that employees only be
charged FMLA leave for overtime hours
which "were part of the employee's
regular schedule,'' as opposed to
voluntary, ad hoc or "as needed'' hours.
Many Postal Service employees also opposed being charged any FMLA leave for overtime hours not worked. For example, the American Postal Workers
Union Clerk Division, Chicago Region
expressed a concern that being charged
for overtime hours could diminish an
employee's entitlement below 12
workweeks, and could be arbitrary and
unfair if the amount of leave charged
was to vary according to seasonal
overtime requirements. The Department
points out that overtime is factored into
the FMLA entitlement because both the
entitlement and the leave usage rate are
based on the employee's required (
i.e.,
scheduled) hours of work. The
Department believes it is fair, therefore, that overtime not worked be counted against the FMLA entitlement when the employee would have been required to work the overtime hours but for the use of FMLA leave.
Finally, employers may not discriminate in the assignment of mandatory overtime between employees who take FMLA leave and others. For example, an employer cannot schedule only FMLA leave takers for required overtime in order to deplete their FMLA leave entitlement, while allowing other employees to volunteer for overtime.
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