Dangers Lurk in Requiring FMLA “Make Up” Work

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The question comes up from time to time at organizations across the country: Can we require an employee to make up time they’ve taken as FMLA leave?

It’s a vexing issue, especially at smaller companies where having one person out can cause work to get really backed up. The question usually comes up in relationship to so-called “intermittent” FMLA leave. This is when an employee may be out for a day (or even a part of a day) at a time, then back at work for awhile, then out again.

When the employee takes FMLA leave for a longer block of time, it’s easier to schedule in a temporary replacement or to reassign duties to other employees “for the duration.” But when they’re only out for a few hours or a day at a time, especially if it’s unpredictable (as with someone who suffers debilitating migraines, for instance), it’s harder to cover the lost time and work.

What makes it tougher is the FMLA regulations don’t specifically mention anything about whether you can have a policy that encourages or requires employees to make up the time spent on FMLA leave. This leaves businesses in a bit of a gray area.

No Interference

However, there are two provisions that may apply here. First, you can’t have policies that discourage employees from taking FMLA leave or that interfere with their right to leave. Doing so is called “FMLA interference” and it can be a very expensive mistake.

A policy requesting employees “make up” for FMLA leave may be well-intentioned. Perhaps you don’t want your workers to miss out on getting a full paycheck for the week, or possibly you simply want to make sure neither the employee nor their department fall too far behind on their workload. But it’s possible a court would see such a policy as discouraging workers from taking their legally-protected leave.

All it would take would be one disgruntled employee who says they felt pressured by your policy to “tough it out” and come in to work instead of taking the FMLA leave they were entitled to, and you could find yourself in court facing an FMLA interference charge.

Equal Treatment

The second provision of the law that may be applicable is that you must offer substantially the same privileges and benefits to FMLA-leave-taking employees that you allow to your workers who take leave for other reasons.

What this means is that if you don’t require workers to make up time missed for non-FMLA leave, you probably shouldn’t require them to make up time for FMLA leave, either. (On the other hand, if you allow employees to make up work to compensate for lost wages due to other kinds of absences, you must also allow it for FMLA leave.)

How to Reduce Your Risk

If you want to offer employees the option of making up for time missed while on (unpaid) FMLA leave so that they can replace lost wages, there are a few precautions you should take. First, make sure you also allow make-up work for other types of leave. Then, make sure your policies clearly state:

  • make-up time is only permitted so workers can compensate for lost wages. The time taken for FMLA leave will still count toward the employee’s FMLA allotment, regardless of whether they work any “make-up time” or not.
  • Working make-up time is never required. Employees can take their full allotment of FMLA leave without working so much as one minute of “make-up time” without suffering any repercussions.

You should also consider actually prohibiting make-up time if the employee took the FMLA leave concurrently with any paid leave, such as sick days, vacation days or paid time off. This can help reinforce the message that the make-up time is only to compensate for lost wages and does not reset the clock on the employee’s FMLA allotment.

Just Because You Can Doesn’t Mean You Should

Even though there’s nothing specifically in the law that prohibits asking employees to make up FMLA leave time, it isn’t necessarily a great idea. In fact, it can be risky.

Before you implement any policies regarding make-up work for FMLA leave, it would also be an excellent idea to consult with your employment law advisor to make sure you’re on the right side of the law. No matter what you decide, you should make sure to train your supervisors and managers so none of them inadvertently expose your company to an FMLA interference claim by discouraging their workers from taking their legally-protected leave.

Does your company allow or require make-up work for absences?

12 Comments

  1. Kathy says:

    It is the policy of my employer to make up all weekends missed while on FMLA.

    • Diane A says:

      Hi, Kathy! Thanks for your comment. Yep, I know a lot of employers do require make-up for work missed, and not just for FMLA time off. Does your employer require people who take leave for non-FMLA reasons to make up their time, too? If they’re singling out FMLA leave, that could possibly be a problem… but if it’s more of a general policy, it might be allowable. Unfortunately, the law itself isn’t clear one way or the other.

  2. Kathy Talliere says:

    My employer requires Saturday FMLA leave be made up. I was on FMLA leave for 3 weeks following heart surgery. I missed a scheduled Saturday during that time. Upon my return I was given notice that I must make up that Saturday. I refused to do it. Eventually, my employer recanted but said it was only due to my consecutive days missed. If it had been intermittent I must make up the time. Does this discourage employees from ever having to miss working a Saturday due to an FMLA situation? Absolutely.

  3. Diane A says:

    I can see where that might discourage someone from taking leave if it’s going to cause them to miss a Saturday. Unfortunately, the law doesn’t directly address “make up time” related to FMLA leave. That means there’s nothing specifically prohibiting them from the practice — short of a legal challenge from an employee who felt they couldn’t/shouldn’t take leave to which they were entitled because of the policy. The law’s lack of clarity on the issue puts both employers and employees in a tricky situation.

  4. Donna MacKersie says:

    Is it lawful for an employer to allow an employee to make up time missed for a portion of a day, but not a full day? It seems that people who miss a full day need the make-up time more than anyone, since oftentimes the day is taken for medical reasons, etc., and they can’t afford to lose the salary for a day but have no choice. Why wouldn’t an employer allow an employee to make up a full day missed if the employee wishes to do so?

    • Diane A says:

      As far as I know, under Federal law employers have to pay employees properly for the time they do work, but they aren’t required by the law to allow any make-up time when employees miss work, regardless of whether it’s a few hours or a full day. It’s pretty much up to the employer whether they’re going to offer the option of making up time at all, and if so, how much “make-up time” will they allow. Where employers potentially get in trouble is if they require make-up work when the employee has properly taken (or requested) FMLA leave (which is not the same as simply taking a sick day). “Regular” sick days and other time off generally don’t have the same legal restrictions as FMLA leave. Various states and municipalities might have different rules regarding sick days and make-up time, so if someone has a question about what their employer is allowed to do (versus what they’re required to do) their best bet is either to consult with a labor law attorney or contact the state department of labor.

  5. Elsie Robinson says:

    My job states you have too have hours worked in order too continue to have Fla if you don’t have vacation or sick time your Absence will count against the employee

    • Diane A says:

      The Family Medical Leave Act (FMLA) says that employees must have been employed for at least 12 months, and have worked at least 1,250 hours in the 12 months prior to requesting leave. If you don’t have that many hours worked, you would not be eligible for any FMLA time. If you are eligible for FMLA time, your employer is allowed to require you to use up any available vacation and/or sick time along with FMLA leave before transitioning to unpaid FMLA leave. They are not required to let you “stack” your vacation + sick leave + FMLA to extend your total time off beyond the 12 total workweeks allowed under the FMLA.

      One thing to keep in mind: depending on the reason for FMLA leave, the Americans with Disabilities Act (ADA) may also apply. This means an employer might have to allow additional leave as an ADA “accommodation,” unless the employer can show that allowing the leave would be an “undue hardship” on the business. If you’ve got a question about your FMLA or ADA eligibility, your best bet would be to talk to the HR department at your work or to an employment law attorney.

  6. Jay Hernandez says:

    I was out for 2 days on FMLA due to my back. My employer is asking me to come in Saturday to make up time. Is this legal? I would think this would fall under FMLA interference because it would discourages employees from taking FMLA when needed.

    • Diane A says:

      Hi, Jay! Thank you for stopping by. Requiring make-up work for FMLA time off is a gray area. While there’s nothing specifically in the law that prohibits make-up time, at least some courts have seen requiring it as “interference.” It all hinges on how your employer’s FMLA policy is written, whether they allow make-up time for people who have taken leave for non-FMLA reasons, whether they are “allowing” the make-up time or they’re “requiring” the make-up time, how they react if you don’t agree to the make-up work, and a host of other factors. If you’re in doubt, your best bet might be to have a chat with an employment law attorney who can review the specifics of your situation and advise you accordingly.

  7. Grace Silva-Santella says:

    I am an employer with only one employee. My one employee often takes time off for transportation problems; i.e. his vehicle needs repair. This time off is not scheduled and there is no advance notice for me as the employer. This time off puts me in a bind to complete my work load for my clients.

    I want to require my one employee to do make up time for his lost hours of work due to his vehicle problems. But I do not want to be required to pay over-time for these lost hours. Can I as an employer require make up time in this situation.

    • Diane A says:

      First, we’re not lawyers here, so I’d strongly suggest you consult with an employment law attorney before you do anything, just to make sure you’re complying with any applicable local or state laws as well as the federal Fair Labor Standards Act (FLSA). Under the terms of the FLSA, since the employee is eligible for overtime, you only have to pay them for the hours they actually work. So even if they’re on a “salary,” you can pay them a prorated amount based on their actual work hours. And you can require them to make up “lost” time. Some states and cities have implemented laws governing how employers can schedule employee time, though, so if you’re in one of those locations be sure you follow the rules related to scheduling, too.

      The thing is, if you want to avoid paying overtime, you have to keep the employee’s hours to less than 40 hours per week. (In some states, like California, overtime is calculated on a daily basis, so if they work more than eight hours in a day you’ll have to pay overtime, regardless of how many hours they work that week.) So if the employee normally works a full 40-hour week, the only way you can avoid paying overtime for the make-up time is by scheduling that make-up time in the same workweek as the “lost” time. In other words, if your work week runs from Sunday to Saturday and they miss work on Tuesday, you could have them work extra hours on Wednesday, Thursday, and Friday (and Saturday if you’re open then) to make up for at least some of the lost time. Aslong as their hours for the week are equal to or less than 40, you would not owe them for overtime. Again, if your city or state regulates employee scheduling, there might be limits on what you can to to make last-minute changes to a worker’s schedule, so be sure to check with an attorney familiar with employment law first.

      However, if you have them make up the lost time in the following work week and that pushes their hours worked in that week to more than 40, you would be required to pay them overtime. If this is a valuable employee who otherwise does very good work and meets or exceeds their goals, you might do well to overlook the occasional transportation issue. Since you only have to pay them for the hours they actually work, you’re not paying for the time they’re out. On the other hand, if they have other performance issues or if you suspect the frequent “transportation issues” are a ruse just to get them out of work, you can take disciplinary action, up to and including termination. (I advise some sort of progressive discipline plan to give the worker the chance to improve first, rather than jumping straight to termination.) Just be sure to check with your attorney before you do anything, to make sure what you’re planning is going to be OK under the law.

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