Under the Family and Medical Leave Act, employees are entitled to take intermittent leave to deal with a serious health condition. The intermittent leave can be in increments as small as one hour. The employer must maintain records as to the amount of intermittent leave taken and whether the employee has reached the 12-week FMLA entitlement. What happens, however, when the employer does not keep records of time worked by the employee? How many hours constitute an FMLA workweek for employees exempt from the Fair Labor Standards Act’s overtime and timekeeping requirements?

Department of Labor rules issued under the FMLA address this situation. According to 29 C.F.R. § 825.500(f)(2), the employer and exempt employee must come to a written agreement as to the employee’s average weekly hours for purposes of determining their FMLA entitlement: “With respect to employees who take FMLA leave intermittently or on a reduced leave schedule, the employer and employee agree on the employee's normal schedule or average hours worked each week and reduce their agreement to a written record maintained in accordance with paragraph (b) of this section.”

This rule is contained in the recordkeeping section, meaning that the employer is required to maintain this written agreement and to provide it to DOL upon request. In our experience, most employers are not aware of this requirement and do not regularly enter into written agreements with exempt employees on intermittent FMLA leave. Employers should review and, if necessary, amend their FMLA policies to create and maintain such records. Electronic exchanges with the employee such as email are enough to satisfy the DOL requirement.