Determining eligibility for family and medical leave (FML) is challenging for employers who paid employees to be idle during spring closures.
To be eligible for FML, an employee must meet all of the following criteria:
- Employed at a site where at least 50 employees work within a 75-mile radius
- Employed by the district for at least 12 months (the 12 months need not be consecutive)
- Worked 1,250 hours in the preceding 12 months
The Department of Labor (DOL) regulations stipulate the 1,250 hours include only those hours actually worked for the employer. This definition is the same as compensable time under the Fair Labor Standards Act (FLSA). Paid leave and unpaid leave are not included. Hence the question “Do hours when an employee was idle but getting paid count as hours worked?”
Despite the closure, administrators, central office staff, and teachers were working remotely. Other positions such as educational aides and bus drivers were idle or had reduced hours for the remainder of the school year causing their hours worked to be significantly reduced.
The decision on how to count hours for FML eligibility is a local decision. FMLA regulations state the employer has the burden of showing an employee has not worked the required hours to qualify. It would be helpful to check board resolution wording to see if the time being paid was to be idle or was paid leave. If employees being paid to be idle were expected to be available, an employer may choose to include these hours. If an employee was on paid leave, the employer may choose not to count these hours.
As an example, an expectant mother planning on FML in the fall may no longer qualify due to the pandemic. During these unprecedented times, using leniency for calculating employee hours worked is permissible providing it is applied consistently for all employees.
For more information on FML, see Family and Medical Leave Benefits in the HR Library.
Karen Dooley is a senior HR consultant at TASB HR Services. Send Karen an email at firstname.lastname@example.org.
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