Tricky FMLA Rule May Trip Up Public Sector Employers

The Family and Medical Leave Act (FMLA) is already confusing for the public sector. Even if you do not have 50 employees as a government entity, you are nevertheless covered and so your employees need to see a policy in your handbook. This requires you to also explain to employees that, unless there are 50 employees within a 75 mile radius of their worksite, they are not eligible for leave. If you are in this position and need language for your handbook, we have it for you.  Go to our website for a policy you can use immediately.

But we also want you to know of another wrinkle that is far from common knowledge or intuition. If an employee is out on FMLA protected leave, and they choose to cover that time off with earned compensatory time, you cannot count that time as FMLA time off under the FMLA regulations.

You may wonder if you can stop an employee from using compensatory time off while they are out on FMLA leave. This can be a risky decision making process. The regulations under the Fair Labor Standards Act (FLSA) are clear on the matter. They state (at 29 CFR §553.25) that any employee of a public agency who has accrued compensatory time and requests use of this compensatory time, shall be permitted to use such time off within a “reasonable period” after making the request, if such use does not “unduly disrupt” the operations of the agency.

A “reasonable period” refers to how quickly the employee can schedule earned compensatory time off. The regulations state that an employer may make allowances for the normal schedule of work, anticipated peak workloads based on past experience, emergency requirements for staff and services, and the availability of qualified substitute staff. While an employee who is working may be asked to delay their use of accrued compensatory time for any of these reasons, the situation is different for an employee who is already out on FMLA. For this latter situation, where the employee presumably could not report to work in any event, it may be difficult for an employer to argue that an allowance based on hardship on the employer’s behalf is necessary. 

Another reason an employee may be denied compensatory time off would be because it would unduly disrupt the agency’s operations. Mere inconvenience to the employer is an insufficient basis for denial of a request for compensatory time off. For an agency to turn down a request from an employee for compensatory time off requires that granting such a request would impose an unreasonable burden on the agency’s ability to provide services of acceptable quality and quantity for the public during the time requested without the use of the employee’s services. Again, the problem is that if the employee is already out on FMLA and unable to work, presumably the employer already made allowances to cover this employee while the employee cannot work.

If the employee delays the return to work beyond the period of the injury stated on the FMLA paper work, and that is due to the compensatory time off, then the employer may be able to argue that the compensatory time off is unduly disruptive. Of course, the employer would have to be able to show that it would impose an unreasonable burden on the public employer’s ability to provide services as discussed above.

Are you concerned about this rule in your workplace? We can help. Give us a call and we will walk through your circumstance to help you make a legally defensible decision.