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.
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.
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?