Can an employee make up intermittent FMLA leave?

Whether an employee may make up intermittent Family and Medical Leave Act (FMLA) leave depends on his or her employer’s policy and practice. The FMLA does not give employees the right to make up time taken as intermittent FMLA leave. It does, however, require an employer that has a policy of allowing employees using non-FMLA leave the ability to work extra hours to make up missed time to allow the person on FMLA leave the same privilege. In other words, FMLA regulations require employers to provide the same benefits and perquisites to employees on FMLA leave as if they had been at work.

In adopting a policy on allowing an employee to make up intermittent FMLA leave, an employer must first define what “make-up” time will allow employees to do—just replace lost wages or also save FMLA leave. If an employer wishes to allow make-up time only to replace lost wages, its policy should clearly state that regularly scheduled work missed due to intermittent FMLA leave will still be counted toward the employee’s FMLA entitlement and that make-up time is allowed to compensate for lost wages if the FMLA leave was unpaid. If the FMLA leave was paid (i.e., vacation or sick leave was used), then make-up time could be prohibited.

If an employer wishes to allow make-up time and not count regularly scheduled time taken off as intermittent FMLA leave, its policy should clearly state the criteria for doing so, such as when the make-up time must be worked (the same workweek or within the same pay period), and proper reporting procedures. There is a caveat to this option: If an intermittent FMLA leave designation has been made, the employee is entitled to the protections of the law. In other words, because the onus is on the employer to count all qualifying leave as FMLA leave, the employer cannot discipline employees for those absences or otherwise negatively affect their employment or benefits based on those absences.

Although either method is acceptable, consistency is a must; therefore, if an employer allows make-up time to be worked, it should include guidance in the FMLA policy as to how this works when applied to FMLA leave.