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  1. #1
    Join Date
    Aug 2012
    Posts
    3

    Default How is Vacation Pay Properly Calculated for Intermittent FMLA Leave

    My question involves labor and employment law for the state of: Ohio

    I meet all eligibility for intermittant FMLA for care of a family member (my wife has a seizure disorder, we have 2 <10year old children, she is unable to care for herself or them for hours after a seizure). Wife's father and adult daughter can usually help, so much of my FMLA time is used in 1 - 3 hr increments, the time it takes for them to show up before I can leave for (or return) to work.

    Doctor has declared on the FMLA forms her condition is permanent and intermittant, with full detailed diagnosis attached. Company only grants the leave for 6 months before requiring recertification. Actual time taken averages 8 scattered days a year, and 20 additional episodes involving 1 - 2 hour absences. Company leave policy requires using paid leave first (vacation is my only paid leave). Supervisor has "considered" adding up the intermittant hours and each time it accumulates to 8 hrs, paying for a day and taking a day of vacation.

    Vacation pay is contractually based on the average weekly hours worked over the previous 12 weeks (for me, averages to 60 hrs straight time pay) so if I could take the time as an actual vacation I would be paid based on quite a bit more than the 40hrs/week rate. Contract does not address any exceptions to the averaged income for vacation provision.

    Questions:
    1 - Can they add up the short absences to accumulate the 8 hrs to take a vacation day? 2 - Can they pay based on the much lower 8hr day rather than the 12 week average? 3 - Can they require more frequent recertifications? (H.R. said that if my FMLA leaves continue I may have to recertify every 30 days?

  2. #2
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Fmla, Paid Leave, and Recertification

    They are quite allowed to charge your FMLA time against your other leave. If you think taking vacation would be more advantageous to you than FMLA, why not take vacation?

    If they pay for it, they can recertify as often as they like (within reason).

  3. #3
    Join Date
    Jul 2012
    Posts
    479

    Default Re: Fmla, Paid Leave, and Recertification

    "Company only grants the leave for 6 months before requiring recertification."

    The law allows them to do this.

    "Company leave policy requires using paid leave first (vacation is my only paid leave)."

    Whether you want to be paid for the time off or not, employer's entitled to require this.

    "Vacation pay is contractually based on the average weekly hours worked over the previous 12 weeks (for me, averages to 60 hrs straight time pay)" so if I could take the time as an actual vacation I would be paid based on quite a bit more than the 40hrs/week rate."

    Sorry, but this is a bit garbled.

    "1 - Can they add up the short absences to accumulate the 8 hrs to take a vacation day?"

    Regardless of the method, they're free to charge your leave bank for time off.

    "Can they pay based on the much lower 8hr day rather than the 12 week average?"

    Again, your description of the leave accrual leaves something to be desired.

    "H.R. said that if my FMLA leaves continue I may have to recertify every 30 days? "

    The law doesn't allow for them to require monthly recerts.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Fmla, Paid Leave, and Recertification

    1.) The law does not address this question. There is nothing in the prohibiting such; there is also nothing in the law requiring it. What does your contract say? (I assume you are talking about a union or other legally binding and enforceable agreement, rather than a company handbook or other general agreement. If I am wrong, say so.)

    2.) Since there is no requirement that you be paid for FMLA time at all, yes, they can. If you receive any pay at all during FMLA, you are receiving more than the law requires. See question about contract, above.

    3.) Yes - under the law they can ask for recertification every 30 days.

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Fmla, Paid Leave, and Recertification

    Per the DOL,
    Quote Quoting Minimum recertification period when no minimum duration of capacity is specified in the medical certification
    [P]rovided the recertification is requested in connection with an absence[,] Section 103(e) of the FMLA states the employer may require subsequent recertifications “on a reasonable basis.” The FMLA regulations at §825.308(a) limit recertification for pregnancy, chronic, or permanent/long-term serious health conditions, when no minimum duration of incapacity is specified on the medical certification (as discussed in §825.308(b)), to no more often than every 30 days, provided the recertification is done only in connection with an absence. If circumstances have changed significantly, or the employer receives information which casts doubt upon the continuing validity of the certification, recertification may be requested more frequently than every 30 days.

  6. #6
    Join Date
    Aug 2012
    Posts
    3

    Default Re: Fmla, Paid Leave, and Recertification

    Ok, to clarify my somewhat muddled description/question about the vacation pay - union contract states that what we are paid for a week of vacation is the average weekly pay of the of the previous 12 weeks. The more O.T work prior to the vacation, the greater the vqacation check, so if base pay is a 40 hr week and I average 60 hrs a week over the previous 12 weeks, I get a 60 hour vacation check. When the plant takes a day of my vacation for FMLA, I only get paid for 8 hrs, no matter what I would have received if figured on the average hours (12 hrs pay in the above example). Contractually we aren't permitted to take our vacation one day at a time. HR reasons that since I'm not permitted to use my vacation one day at a time, it isn't "really" vacation pay so they don't have to figure the average. This has gone through grievence procedings to the last step before arbitration and the company is adamant. Union declines to ask for arbitration "because of the expense" (quoting our union president). Need to determine if this is persuable through a DOL complaint or if I'm just out of luck.
    AND, thank you all for your replies, I do appreciate the enlightenment.

  7. #7
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    17,019

    Default Re: How is Vacation Pay Properly Calculated for Intermittent FMLA Leave

    Generally speaking, the employer is permitted to apply whatever calculation formula they wish to vacation pay, absent a CBU to the contrary and their application in a consistent manner among workers.

  8. #8
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Fmla, Paid Leave, and Recertification

    The DOL does not care if you ever get paid any vacation at all, let alone that it be calculated in any particular way. There is NO requirement that vacation time is calculated in any particular way under Federal law or any state law but California.

  9. #9
    Join Date
    Aug 2012
    Posts
    3

    Default Re: Fmla, Paid Leave, and Recertification

    Apparently misunderstood what I had been reading. I had thought that there were requirements that taking vacation days for FMLA had to follow the same standards as other company leave. Didnt realize that there were no standards for it other than whatever the company feels like applying. And I jumped to the conclusion that applying their whims (since these "rules" seem to appear with no written policies) to pay out what amounts to roughly a 25% pay penalty for a person taking paid leave for FMLA versus any other company leave would be be prohibited.

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