The first ten days of FMLA leave under the Act “may consist of unpaid leave” but an employee may elect to substitute any accrued vacation leave, personal leave or medical or sick leave for unpaid leave (the employer may not require substitution of paid for unpaid leave).
After ten days of such leave, the employer must provide paid FMLA leave at a rate of no less than 2/3of the employee’s salary (that is, 2/3 of the employee’s regular rate times the number of hours the employee would otherwise be normally scheduled to work). In the case of an employee whose schedule varies from week to week, special rules apply if the pay cannot be determined with certainty using the aforementioned method. Under the special rules, the employer shall figure the number of average hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes leave, including hours for which the employee took leave of any type. If the employee did not work over such period, then the employer shall base its calculation on the “reasonable expectation” of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
The 2/3 paid leave requirement is subject to a cap of $200 per day and $10,000 in the aggregate.