The Department of Labor has recently released an Opinion Letter regarding the calculation of Family and Medical Leave Act (FMLA) leave for employees who work regular overtime. When employers calculate an employee’s leave entitlement under the FMLA, they may do so by calculating hourly approximations of an employee’s workweek. For example, employees who regularly work a 40-hour workweek would be entitled to 480 hours (12 weeks) of FMLA leave. This method can leave employers with employees who work regular overtime (either mandatory or voluntary) confused as to how that overtime would factor into their FMLA leave calculations. Would an employee who works 48 hours weekly (40 regular and 8 mandatory overtime) have 480 hours of FMLA leave or 576 hours? One such employer asked the question that prompted this Opinion Letter.

The Opinion Letter states that, when an employer calculates the hourly equivalent of FMLA leave available to an employee, that employer should use the normal, scheduled hours worked. This would include any mandatory overtime assigned during the workweek but would NOT include any voluntary overtime. This also applies in reverse: if an employee would be required to use mandatory overtime (but cannot due to FMLA-qualifying reasons), then the employer may deduct that mandatory overtime from their bank of FMLA hours.

Employers should be wary of this Opinion Letter when attempting to calculate FMLA hours employees are entitled to.

You can read the entire Opinion Letter HERE.