Employee leaves of absence can be tough enough to manage any time of the year, but when the holidays come around, many organizations experience more of a drain on productivity due to the high volume of pre-schedule vacation coupled with the intermittent leaves being used. Operations don’t shut down over the holiday season, especially an issue in 24/7 environment like transportation and health care. So how do managers track leaves and ensure the work is getting done in this type of environment?
Below are a few common scenarios leave specialists run into this time of year — and suggestions on how to resolve them.
Q: Sally called off for intermittent FMLA the day after Thanksgiving (to do some black Friday shopping). Do I have to pay her holiday pay?
A: As we all know, FMLA is an unpaid benefit, but around the holiday season this question will inevitably be posed to at least one leave specialist. Before we begin to answer the question, the employer has to be able to provide answers related to their current non-leave policies and practices. Do you have a written policy in place that addresses unscheduled call-offs around holidays? Typically these policies indicate employees calling off unscheduled the day before and/or the day after the holiday will not receive holiday pay. Second, is the employer comfortable that this policy is being applied 100 percent of the time? If both of these conditions apply, the employer would be safe to not pay Sally for the day after Thanksgiving call-off. However, if there is concern that the policy is not being consistently applied or is only being applied when the employee calls off for an FMLA reason, this could lead to retaliation or interference claims.
Q: Bobbles-R-Us closes its plant every year for one week in December to perform routine maintenance on its equipment. This year, that week will be the first week of December. When Joe applies for his continuous FMLA from November 14 through December 16, how much FMLA time will he be using?
A: The FMLA regulations actually address this very issue in §825.200(h). When an employer is not in operation for an entire workweek, the employee cannot be expected to use FMLA time for this workweek. Therefore, Joe will be using four workweeks of FMLA time during the five-week period outlined above. Similar rules are in place for educational institutions where teachers are not expected to be at work during week long periods of time over the holidays and in the summer months. However, this answer would change if the operation were only to shut down for a partial week. In that case, the employer could count a partial week of FMLA for days the employee would have been expected to be at work, but for the FMLA qualifying reason was not. So if the plant only closed for two days of the five day workweek, Joe would have four and three-fifths weeks of FMLA used, instead of just the four weeks for the same period of time.
Q: An employee called off FMLA for time that they requested but were not granted. Do I have to approve the FMLA time usage?
A: This is an area where employers must be extremely cautious and practice solid management and HR practices. They should not jump to conclusions about the time being taken. Yes, there is a great deal of suspicion that arises given the situation described; however, just by its very nature, intermittent FMLA can be used in an unpredictable pattern. Emotions cannot rule in this situation or you can find yourself in a good bit of trouble. HR should conduct an investigation as you would for another suspected performance situation. Request a meeting with the employee to find out what really occurred necessitating the call-off (and actually listen to the reason). If there are still concerns, the employer can engage the treating provider in verifying the pattern of absences.
- http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=d178a2522c85f1f401ed3f3740984fed& rgn=div5&view=text&node=29:188.8.131.52.54&idno=29#se29.3.825_1200