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A recent conversation with a client helped illustrate some confusion regarding the taking of intermittent leave under the Family and Medical Leave Act (FMLA), and expecting employees to make up the leave, particularly when the leave is only a matter of hours.

The short answer to the question is NO. Read on to learn more.

To illustrate

Jolene, an employee as a commercial driver for a company, took intermittent FMLA leave to care for her mother. Her mother’s condition would flare up every now and then, requiring Jolene to suddenly take time off from work. The flare-ups were unforeseeable, but Jolene would contact her supervisor when she learned of the need for leave.

Jolene’s job was governed by the driving limits under the Federal Motor Carriers Safety Act (FMCSA). After having at least 10 hours off, she could drive up to 11 hours, and those 11 hours of driving had to be completed within 14 hours. Some of the time within those 14 hours could be used for non-driving tasks.

One day, Jolene needed to take four hours of FMLA leave to care for her mother. When she arrived at work, her supervisor informed her that she could still drive for 11 hours, basically expecting the employee to make up the four hours taken as FMLA leave.

Two considerations were at play in this situation:

  • The supervisor was unaware that the FMCSA’s provisions and the FMLA’s provisions are separate; the FMCSA does not govern the FMLA, and the FMLA does not govern the FMCSA. Just because the FMCSA indicated that the employee had not yet met her driving limit, did not undermine her entitlements under the FMLA. A little supervisor training might help here.
  • Requiring an employee to make up time taken as FMLA leave can have a “chilling” effect on an employee’s taking of such leave, which could translate into an interference claim.

Voluntarily making up time

Could an employee voluntarily decide to make up intermittent FMLA leave? Sure, but there are still some considerations.

When an employee does make up time taken as FMLA leave, you might wonder whether the leave taken can be counted against the employee’s 12-week FMLA leave entitlement. Currently, there is no definitive word on this. You could argue that you fully observed the employee’s protections when you allowed the time off, so you should be able to count it.

On the other hand, a good argument could be made that if the employee made up the time, and no shortfall in hours occurred, so nothing should count – and you should not require the employee to take more FMLA leave than is necessary.

Most employers do not treat the missed time as FMLA leave if it is made up. This avoids the risk of a potential interference claim.

Company policies

If you have policies where employees are permitted to make up time missed for non-FMLA leave, you should permit them (but not require them) to make up time taken as FMLA leave and not count it against their 12-week entitlement.

Key takeaway: Employers should not mandate that employees make up time taken as FMLA leave, even if another law’s working limits are not met. The FMLA leave is an employee leave entitlement law.