Chapter 6 - § 6.8 • LEAVE

• Jurisdiction: Colorado

§ 6.8 • LEAVE

The FMLA provides for a total of 12 weeks of unpaid leave during any 12-month period. 29 U.S.C. § 2612(a)(1); 29 C.F.R. § 825.200. The 12-month period is not limited to a calendar year. The employer may instead choose (1) any fixed 12-month period such as an employee's anniversary date or a fiscal year; (2) a 12-month period measured forward from the date an employee's FMLA leave is first taken; or (3) a 12-month period measured backward from the date leave is used. 29 C.F.R. § 825.200.

Any employer who seeks to change to any method of computing the 12-month period is required to give at least 60 days' notice to all employees. Further, the transition must occur in a manner which permits the employee to retain the full benefit of 12 weeks of leave under whichever method affords the greatest benefit to the employee. During the 60-day notice period, an employee needing FMLA leave may use the option providing the most beneficial outcome to that employee. At the conclusion of the 60-day period, the employer may implement the new method of calculation. 29 C.F.R. § 825.200(d)(1).

§ 6.8.1—Substitution Of Paid Leave For Unpaid Leave Provided By FMLA

If an employer has a policy providing for paid leave, an employee may substitute accrued paid leave for unpaid FMLA leave. Any conditions or limitations on the use of the accrued paid leave will apply to any request to substitute paid leave so long as such conditions or limitations are non-discriminatory. For example, if an employer's policy provides that accrued paid sick leave may be used solely for the employee's sickness, then any accrued paid sick leave need not be provided to an employee who utilizes FMLA leave to care for a child. After the employee exhausts the paid leave, any additional weeks remaining out of the 12 weeks of leave under the FMLA may be unpaid. An employer may require an employee to substitute any accrued paid vacation leave, personal leave, or family leave of the employee for any part of the 12-week FMLA leave. 29 U.S.C. § 2612(d); 29 C.F.R. § 825.207.

§ 6.8.2—Intermittent Leave

When leave is taken because of a serious health condition of either the employee or the employee's family member, intermittent or reduced leave may be taken if medically necessary. 29 U.S.C. § 2612(b)(1). Unless an employer agrees, an employee is not entitled to take intermittent or reduced leave for the birth or adoption of a child. 29 U.S.C. § 2612(b)(1); 29 C.F.R. § 825.202(c). A pregnant employee may take intermittent leave for prenatal examinations or her own condition, such as morning sickness. 29 C.F.R. § 825.202(b)(1).

An employee's use of intermittent leave shall be calculated using the shortest time period used by the employer's payroll to account for absences so long as the time period is one hour or less. 29 C.F.R. § 825.205. If, for instance, an employer tracks other employee absences in half-hour increments, then any intermittent leave utilized will be accrued in half-hour increments. If, however, an employer tracks employee absences using four-hour blocks, the employer...