How should intermittent FMLA leave be calculated when an employee moves from full- to part-time status?
Issue: Six months ago, one of your full-time employees (working 40 hours per week) was granted intermittent leave under the Family and Medical Leave Act (FMLA). He has taken three weeks (or 120 hours) of leave. Last month, he transferred to a part-time position, working 20 hours per week, and he continues to need FMLA leave. How should you calculate the intermittent leave? Should it be based on his former full-time hours or his current part-time hours?
Answer: Under the FMLA regulations, if an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than the FMLA and prior to the notice of need of FMLA leave), the hours worked under the new schedule are to be used for making this calculation.
In this situation, the employee has nine weeks of FMLA leave remaining in his FMLA year. Going forward, you should use his part-time schedule to calculate any intermittent FMLA leave. Thus, he would have 180 hours of FMLA leave remaining for the year.
Keep in mind that the U.S. Department of Labor requires FMLA leave to be calculated in workweeks. For instance, if an employee is scheduled for 20 hours per week and takes intermittent leave for a total of 10 hours that week, he has used one-half of a workweek for FMLA purposes. Generally speaking, employers should look at the hours scheduled for the employee for that particular week and determine the FMLA usage accordingly.
Source: 29 CFR §825.205(b)(2).
FMLA leave generally not available following pet’s death
Q Earlier this year, one of our employees wanted to take Family and Medical Leave Act (FMLA) leave because he was suffering from insomnia and emotional distress after the passing of his beloved pet. Is this allowed under the FMLA rules?
A Insomnia caused by emotional distress over the passing of a pet is not considered a serious health condition under the FMLA, at least according to the U.S. District Court of Eastern Wisconsin in a decision handed down in late 2017.
In the case, the employee requested a vacation day for his next scheduled shift because he was upset about having to put his dog of 13 years to sleep. The employer approved this request for leave. The next day, the employee called his supervisor again and allegedly explained that he had not slept since the loss of his dog and would not be able to work the next day. This day off was documented as an unexcused absence. Even though the employee did seek treatment for his condition and was diagnosed with “situational insomnia,” the absence remained unexcused. Over the next several months, the employee accumulated several other unexcused absences that resulted in his termination. He filed suit against his employer, alleging interference of his FMLA rights.
In granting summary judgment in favor of the employer, the district court rejected the employee’s claim that his employer interfered with his rights under the FMLA. The court held that while inability to sleep caused by the passing of a pet could arguably constitute a “serious health condition,” the employee in this case failed to show that his condition qualified under the FMLA.
SOURCE: Buck v. Mercury Marine Corp., (E.D. Wis.), No. 16-cv-1013-pp, December 22, 2017.
Garnishment of Lump-Sum Payments
Q We have garnishment orders on file for a few employees, do we have to garnish their wages in the case of bonuses, or other lump sum payments? Or just their regular pay?
Garnishment of lump-sum payments. The third letter on a recent DOL release addresses the question of whether certain lump-sum payments from employers to employees are considered earnings for the purpose of garnishment under Title III of the Consumer Credit Protection Act (CCPA).
The opinion letter states that in assessing whether certain lump-sum payments are earnings and subject to CCPA garnishment limitations, “the central inquiry is whether the amounts are paid by the employer in exchange for personal services.” When the lump-sum payment is made in exchange for personal services rendered, then like payments received periodically, it will be subject to the CCPA’s garnishment limitations (as described in Fact Sheet #30: The Federal Wage Garnishment Law, Consumer Credit Protection Act’s Title III). “Conversely, lump-sum payments that are unrelated to personal services rendered are not earnings under the CCPA,” according to the letter.
The WHD considers that the following lump-sum payments (as specifically defined in the text of the letter) are earnings under the CCPA:
Discretionary and nondiscretionary bonuses;
Productivity or performance bonuses;
Profit-sharing, referral, and sign-on bonuses;
Moving or relocation incentive payments, attendance, safety, and cash service awards;
Retroactive merit increases;
Payment for working during a holiday;
Workers’ compensation payments for wage replacement;
Termination pay (e.g., payment of last wages, as well as any outstanding accrued benefits);
Severance pay; and
Back and front pay payments from insurance settlements.
The letter also stated that the following lump-sum payments (as specifically described in the inquiry to which the letter responds) are not earnings under the CCPA:
Workers’ compensation payments for medical reimbursements;
Wrongful termination insurance for compensatory or punitive damages; and
Buybacks of company shares.