In a recent post, I discussed an employer's obligation to designate leave under the Family and Medical Leave Act even though the employee did not want it to be classified as FMLA leave.

The post generated considerable feedback and some follow-up questions. I wanted to highlight one of those questions. One of our blog followers (see right hand column of our blog to sign up to receive our blog posts!) posed the following: We have a policy that requires employees to use paid leave at the same time as FMLA leave. However, paid leave can be taken only in one-half day or full day increments. If an employee needs two hours of FMLA leave (e.g., to receive medical treatment), can an employer require that the employee use paid leave and FMLA leave in increments provided for under the employer's policy? In other words, can the employer require the employee to use one-half day of paid leave and one-half day of FMLA leave?

This question raises a rarely discussed FMLA principle, but the short answer to the question likely is, "Yes." If the employer's paid leave policy requires paid leave to be used in certain increments (e.g., half or full days), and the employee wants to use paid leave, then FMLA leave will be exhausted in the same increment of time as required by the paid leave policy. The Department of Labor explains this principle in the following example, as outlined in its FAQs to the FMLA (pdf):

Neila needs to take two hours of FMLA leave for a treatment appointment for her serious health condition. Neila would like to substitute paid sick leave for her absence, but her employer’s sick policy only permits employees to take sick leave in full days. Neila may either choose to comply with her employer’s sick leave policy by taking a full day of sick leave for her doctor’s appointment (in which case she will use a full day of FMLA leave), or she may ask her employer to waive the requirement that sick leave be used in full day increments and permit her to use two hours of sick leave for her FMLA absence. Neila can also take unpaid FMLA leave for the two hours.

The Employer Has Options

In light of the DOL guidance above, let's return to the question posed by our blog subscriber. Because the employer requires paid leave to be used in one-half day or full day increments, it has the following options (presuming that the employee wants to use paid leave in conjunction with FMLA leave):

1. The employer can require the employee to take paid leave and FMLA leave in increments required by the paid leave policy. Therefore, if the employee requires two hours of FMLA leave to attend a medical appointment, and the employer requires paid leave to be used in one-half day increments, the employee exhausts one-half day of paid leave and one-half day of FMLA leave). Note to employers: employees cannot be charged FMLA leave for time in which they are working. So, in an example of an eight-hour work day, you cannot require that an employee take one-half day of FMLA leave but insist that the employee return to work immediately after the two-hour medical appointment.
2. The employer can make an exception to the paid leave policy and allow the employee to take paid leave and FMLA leave in a smaller increment of time. Thus, if the employee needs two hours of FMLA leave to attend a medical appointment, the employer can account for two hours of paid leave and two hours of FMLA leave.
3. Now, put the two points above aside. If the employee wants to take unpaid FMLA leave for the two-hour medical appointment, the employer must allow the employee to take two hours of leave. Here, the employer may charge only two hours of FMLA leave against the employee's allotment.

Is This Rule Short Lived?

Now that I have explained the current rules with respect to accounting for paid leave and FMLA leave, the DOL is proposing that these rules change! In its recent Notice of Proposed Rulemaking, the DOL has proposed that "an employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for leave." Thus, the DOL favors reverting back to the principle that employers must track FMLA leave in the shortest increments of leave at any time. If adopted, employees only would be charged FMLA leave for the period in which they need leave (e.g., two hours of FMLA leave for a two-hour medical appointment). The Society for Human Resource Management (SHRM) has commented on the proposed rule change (pdf) that are worth a read. The DOL is unlikely to issue a final rule until later this year.

I would be interested in the employer community's feedback on this current regulation. Does the current rule help your business? Would a reversion (as DOL proposes) create operational problems? I welcome your comments.