Q:  We have an employee who works four days per week.  He regularly calls off work one day every other week due to his chronic bad back.  Can we require that he “make up” his day off later in the workweek?

A:  The FMLA regulations do not give us any clear guidance as to whether an employer can maintain a policy that requires or even encourages employees to “make up” FMLA leave.  However, the regulations (and several court decisions) make two general principles very clear: 1) employers cannot engage in conduct that discourages or otherwise “chills” an employee from requesting or taking FMLA leave; and 2) employers must provide privileges and benefits to employees who take FMLA leave in the same manner they offer benefits to those on non-FMLA leave.

Let me be blunt: requiring employees to make up FMLA leave is fraught with problems and invites litigation, as a court would very likely find that such a policy causes employees to refrain from requesting FMLA leave (because they are forced to make up the time on a different day).  I am reminded of a few cases that generally highlight the point: 

  • A few years back, we highlighted McFadden v. Ballard Spahr, a case in which the plaintiff claimed her employer misinformed her of the amount of FMLA leave she was entitled to, and then harassed her for taking leave.  The court found that, where an employee can demonstrate that she would have taken more available FMLA leave had the employer not engaged in this conduct, she could assert an FMLA interference claim.
  • Take a look Grosso v. Fed Ex. Corp. (pdf) as well.  In that case, Grasso was provided all the FMLA leave he requested to care for his ailing father.  However, he also claimed that Fed Ex told him he was taking too much FMLA leave and that he needed to return to work.  The Court found that Grosso had provided enough evidence to show that Fed Ex had attempted to discourage the employee’s use of FMLA leave and allowed the claim to go to a jury.

In the context of a policy or practice requiring employees to make up time taken as FMLA leave, these cases above give me some pause.  Can you picture this scenario: 

Employee: I’m calling off today because of my chronic bad back.  So, I’ll take it as an FMLA day.

Boss: Well, Sonny, that’s fine, but you know we like people who take these one-off FMLA leaves to make up the time later in the week.  It’s all good, cause then you’ll get your full pay for the week.  Now, tell me, what day can you come in later this week?

Employee:  Uh…well, I dunno.  I would need to find child care for my child who has uromysitisis poisoning.  Ummm, well, it’s probably too much trouble.  On second thought, I’ll just come into work today.  I’ll be there by the start of the shift. 

Boss: Sounds good, Sonny.  Good decision, I say.  See you in a few.

Wham!  In seconds, the boss — who was just following Company policy — has created an FMLA interference claim.  Even if the employee had taken FMLA leave and agreed to make it up later in the week, might we have a situation like McFadden or Grosso above, in which the employee could show that the exchange between the boss and him above had a chilling effect and caused him to refrain from requesting FMLA leave in the future?  I think the employee has a good argument.

With this guidance in mind, for those employers out there that still maintain a policy that allows employees to make-up time to replace lost wages (as a result of unpaid FMLA leave), its absence/make-up policy should clearly identify that: 1) scheduled work missed as a result of FMLA leave will still be counted towards the employee’s FMLA allotment, and make-up time is allowed to compensate for lost wages (again, in the event FMLA leave was unpaid); and 2) make-up time is not required.  Employers should consider prohibiting make-up time if the FMLA leave ran concurrently with paid leave, such as sick or vacation time.

On the flip side, if an employer has a policy or practice of allowing employees on non-FMLA leave to make up their absence, the employee on FMLA leave must be allowed the same privileges. Keep in mind one of the two principles I outlined at the outset: the FMLA regulations require employers to provide benefits to employees on FMLA leave in the same manner offered to those on non-FMLA leave.

What’s your practice in this situation?  I welcome your feedback on whether a make-up policy has worked for you.