Count only hours actually worked for eligibility

Do you have special incentive programs to make weekend work attractive to employees? If your program pays workers “credit hours” for time not actually worked, you don’t have to include those hours toward FMLA eligibility.

Employees are eligible for FMLA leave if, among other requirements, they worked more than 1,250 hours in the FMLA benefit year before taking leave. But you have to count only the actual hours worked. If your incentive plan credits additional hours that weren’t actually worked, don’t include those in the FMLA count.

Recent case: Carla Mutchler, who worked as a registered nurse for Dunlap Memorial Hospital, took part in a special incentive plan that helped ensure the hospital had nursing coverage on weekends. Dubbed the “Weekender Program,” the plan allowed her to work two 12-hour shifts each weekend, plus one assigned holiday per year. That meant Mutchler worked approximately 48 hours in any two-week period.

As an incentive, the hospital paid “Weekender Program” nurses for 68 hours per two-week period, making them eligible for full-time benefits.

Mutchler needed carpal tunnel surgery and asked for FMLA leave. When the HR office tallied her hours, it found she had actually worked just 1,242.8 hours, or 7.2 hours short of the 1,250-hour requirement. The hospital allowed her to take non-FMLA leave but filled her “Weekender Program” slot with another nurse and offered Mutchler a weekday schedule.

Mutchler sued, alleging the hospital violated the FMLA by refusing to give her the old shift back.

The 6th Circuit Court of Appeals tossed out her case. It reasoned that only actual hours worked, not incentive hours paid, count toward FMLA eligibility. (Mutchler v. Dunlap Memorial Hospital, No. 06-3132, 6th Cir., 2007)