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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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Return to 29 CFR § 825.205

 

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