Can my employer deduct this time from FMLA?

I am a manager at a large retail company and am currently 8 weeks pregnant. I had slight complications and had to take time off of work for 2 weeks. I was already owed 4 vacations days and a holiday to take care of one of the weeks, however they charged both to FMLA. Now they tell me I can only stay home for 10 weeks with my baby when it is born. is that right? Also my salary is based on 45 hours a week, 9 hours a day, but I am always scheduled to work more hours without compensation. I am being told that if my doctor restricts me down to anything under 9 hours that time will be deducted from FMLA as well thus giving me less time with my child. Is that fair to do when I technically have already worked so many hours to make up for this possible restriction? Please help me.

1 answer  |  asked Nov 8, 2010 6:13 PM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
Check your employer's FMLA policy. If it states that your employer can require you to use your vacation or other paid time off during FMLA qualifying absences, then your employer is probably correct. Under such a policy, if the time taken off for the pregnancy related complications qualifies for FMLA leave, your employer can probably deduct that time from the 12 available FMLA weeks. Therefore, unless the policy states otherwise, you probably cannot extend your FMLA by the amount of available vacation or time off.

As for treating shifts of less than 9 hours as partial FMLA days, full and partial days are based on your normal schedule. If you are unable to work your normal work schedule because of an FMLA qualifying reason, then the portion of the scheduled hours that you cannot work counts as a partial FMLA day. For example, if your regular shift is 8 hours and you are able to work only 6, then you used 1/4 of an FMLA day (2/8). If your normal shift is longer, say 12 hours, then you only use 1/6 of an FMLA day when you miss 2 hours of it.

In your case, it may be important to document the higher number of hours that you were normally scheduled to work. Be aware, though that that could be a double edged sword. For example, if you can only work 8 hours out of 9, you use up 1/9 of an FMLA day. However, if you can only work 8 hours but normally worked 12 hours, you actually use up 1/4 of an FMLA day ((12-8)/12).

posted by Neil Klingshirn  |  Nov 9, 2010 12:14 PM [EST]

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