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Counting leave

When employees take leave intermittently or on a reduced leave schedule, employers may count only the amount of leave actually taken toward the employee's 12-week leave entitlement.

The actual workweek is the basis of leave entitlement. This means that if employees work more than 40 hours a week, they get more than 480 hours of FMLA leave. An employee who normally works 50 hours per week, for example, would get 600 hours of FMLA leave.

When calculating how much leave employees take, if an employee who otherwise works 40 hours a week takes 8 hours off, the employee would use one-fifth of a week of FMLA leave. Similarly, if an employee who normally works 8-hour days works 4-hour days under a reduced leave schedule, the employee would use one-half of a week of FMLA leave.

For employees who work a part-time schedule or variable hours, employers may pro-rate the amount of FMLA leave. If, for example, an employee who generally works 30 hours per week takes 10 hours of leave under a reduced leave schedule, the employee's 10 hours of leave would equal one-third of a week of FMLA leave.

Employers may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee's total normally scheduled hours.

Recouping leave under the rolling backward method

Employers should be aware of the differences between accruing leave and employees recouping leave when employers use the 12-month rolling backward method for their 12-month leave year. In that situation, employees get more FMLA leave as their old leave “rolls off” the calendar and more leave “rolls on.”

Key to remember: Employees get 12 weeks of FMLA leave, but they don’t accrue the leave at a certain rate — 12 weeks is 12 weeks. How much hourly leave they get, however, is based on their actual workweek.

The backdrop

The company required some employees to work on weekends and holidays. It normally called Andrew, an employee, to work on an as-needed basis. He would indicate that he was available for work by “marking up” for it, and indicate when he wasn’t available for work by “marking off.”

The employer assessed attendance points when employees marked off as sick, which could lead to discipline. The employer, however, didn’t assess points if employees took FMLA leave. Employees weren’t supposed to use FMLA leave to avoid working on weekends or holidays, though.

The company identified employees with a pattern of taking FMLA leave to extend their weekends, vacations, or holidays. Jolanda, the company's senior benefits manager, determined the criteria used to identify employees who were potentially misusing FMLA leave and conducted individualized reviews.

The story

In May 2017, Andrew applied for intermittent FMLA leave for major depression and insomnia. Andrew’s doctor estimated that he would need to take intermittent FMLA leave once a month for up to 2 days per episode. The company approved the leave.

In August, the company sent Andrew a warning letter after he used FMLA leave on 4 weekends over a 6-week period. The letter stated that it appeared he was misusing FMLA leave, as he had a pattern of marking off FMLA leave on the weekends, or in conjunction with vacations or holidays. The letter further stated that continued FMLA misuse could lead to discipline.

As the holidays approached, about 10 percent of the workforce marked off for Christmas morning. Because of this, Jolanda believed that some employees were using FMLA leave dishonestly and investigated the cases. Jolanda didn’t, however, include employees who had cancer, were terminally ill, or were about to give birth, as she deemed these conditions justified using FMLA leave.

She investigated Andrew because he took FMLA leave from the day before Thanksgiving until the day after Thanksgiving, when he had the first of 2 scheduled rest days. He also took FMLA leave on Christmas Eve and Christmas Day, followed by 2 consecutive rest days, and again on New Year’s Eve and had New Year’s Day off as a vacation day. The employer accused him of misusing FMLA leave and eventually fired him. He sued.

In court

Andrew claimed that the employer violated the FMLA when it fired him for taking FMLA leave over Christmas and New Year’s Eve. He argued that holidays worsened his condition, justifying his need for leave. He also argued that the investigation into him wasn’t reliable, since Jolanda didn’t include employees with other conditions in her investigations.

In denying the employer’s request to throw the case out, the court said that the company’s systematic better treatment of similarly situated employees with other serious health conditions was evidence that would allow a jury to infer that its disciplinary action against Andrew was retaliation for taking FMLA leave on holidays.

Brown v. CSX Transportation, Inc., District of Florida, No. 8:24-cv-2777, January 23, 2026.

Key to remember: Watching for FMLA leave misuse patterns can be useful, but when employers take disciplinary action without an individualized review (or apply policies inconsistently) their actions can risk crossing the line into retaliation.

The courts weigh in

After being dismissed from the hiring process, the applicant sued the trucking company, arguing that the rejection violated Pennsylvania’s Criminal History Record Information Act. The Act is a state law that defines how employers can use a person’s criminal past when making hiring decisions. Under the law, employers must:

• Show that a conviction relates to whether someone can do the job in question, and
• Put it in writing if they turn down an applicant based on criminal history.

A district court threw out the case, saying that the law applies only when employers obtain criminal records from state agencies, not when applicants disclose information themselves.

The U.S. Court of Appeals for the Third Circuit disagreed. In reversing the lower court’s decision, the judge explained that the statute focuses on what kind of information an employer receives, not where it comes from. The law protects information that is part of someone's criminal history record, regardless of the source.

The key distinction, the court found, is between the type of information and its origin. When the applicant disclosed his robbery conviction, the company received information that exists in his criminal history record file maintained by state agencies. That triggered the law's protections, even though the company learned about it directly from the applicant rather than through an official background check. 

No impact on ‘ban-the-box’ laws

The trucking company argued that interpreting the law this way would make legislation known as “ban-the-box” laws meaningless. Local ban-the-box ordinances prohibit employers from asking about criminal history on job applications. But the court rejected that reasoning. Pennsylvania's law doesn’t stop employers from asking about convictions; it just limits what they can do with the answers. Ban-the-box laws are another layer of protection cities can choose to require.

The company also tried to use an exception in the statute for information from certain public sources like court documents and police blotters. The court wasn’t persuaded by this argument because even if that exception applied to hiring discrimination claims, it doesn’t cover what an applicant voluntarily shares. The law lists specific exempted sources, and by omitting applicant disclosures from that list, the legislature signaled they shouldn’t be exempt. 

The decision sent the case back to the lower court, where the company will have to defend its actions. That means the trucking company must show why the applicant’s robbery conviction makes him unsuitable to drive their trucks, and whether the company provided proper written notice when it turned him down. 

Employers, especially those in Pennsylvania, New Jersey, Delaware, and the Virgin Islands – the states covered by the Third Circuit – should be aware that this ruling clarifies that criminal history laws apply uniformly. The protections don’t disappear if an applicant chooses to be honest during the hiring process. 

Key to remember: A federal circuit court ruled that learning about a criminal conviction from a job applicant triggered the same legal protections as learning about it through an official background check during the hiring process. 

Certification

A certification supporting the need for FMLA leave might indicate that the employee needs time away from work to prevent flare-ups. If it doesn’t, and an employee takes a substantial amount of leave for such a reason, the employer may ask for a recertification — especially if the employer doubts the reason for an absence.

As part of the request, the employer may give the health care provider a record of the employee's absence pattern and ask the provider if the serious health condition and need for leave are consistent with such a pattern.

Other steps to avoid a flare-up

In some situations, employers might wonder if they could ask the employee to work from a different location instead of taking leave if the location is the cause of a flare-up. Unfortunately, the employee is entitled to the leave for a qualifying reason, including time off to avert a flare-up.

If an employee chooses to work from a different location, employers wouldn’t count that time as FMLA leave because the employee is still working.

Key to remember: Employers must count and protect an employee’s time off to avoid a flare-up of a medical condition.