When to Count Uncommon Leave as FMLA

Dec 10, 2018 | Human Resources

Employers subject to The Family and Medical Leave Act (FMLA) may unknowingly violate its provisions.  Determining when to count uncommon leave against FMLA requires an understanding of the regulation.

But first, employers need to understand the basics and if the Act applies to their companies.

Is Your Company Subject to FMLA

Do you know if your company is subject to FMLA?  Generally, private employers with at least 50 employees within a 75-mile radius are covered by the law.


Employers must notify employees of FMLA by displaying a General Notice of FMLA Rights poster and providing written notification. This notification can be in an employee handbook or other written policy.

The law provides eligible employees with unpaid, job-protected leave for specified family and medical reasons.  Eligible employees may take up to 12 weeks of leave in a 12-month period.  26 workweeks are available to care for a covered servicemember with a serious injury or illness. This applies when the employee is the spouse, son, daughter, parent, or next of kin of the servicemember.

Leave may be taken concurrently or under certain circumstances an employee is entitled to take FMLA leave on an intermittent or reduced schedule basis.

Did You Know? – When to Count FMLA

When a holiday occurs within a week in which an employee takes a full week of FMLA leave, the entire week is counted as FMLA leave.

If, however, an employee is taking FMLA leave in increments less than one week, the holiday is not counted as FMLA leave—unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

Company shutdowns of one or more weeks where employees are not expected to report to work, such as for the Christmas/New Year holiday, a summer vacation, or a plant closing for retooling or repairs, do not count against an employee’s FMLA leave entitlement.

If an employee would normally be required to work overtime but is unable to do so because of a FMLA-qualifying reason, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement. However, voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.

Get Guidance

FMLA leave can be complicated.  There are many provisions covered employers must understand. These include notifications, classification of leave, leave procedures, job protection, continuation of group health plan coverage and many more.

To assure compliance, covered employers should seek advice from an HR professional or legal counsel.  Resources are also available from the US Department of Labor.

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