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Overtime and FMLA Leave Overtime and FMLA Leave

Overtime and FMLA Leave

It is commonly understood that under the Family and Medical Leave Act ("FMLA"), an eligible employee of a covered employer is entitled to 12 workweeks of leave during a 12-month period for the birth of a child, the placement of a child for adoption or foster care, the care of a family member with a serious health condition, or the employee’s own serious health condition. Accordingly, when an employee utilizes FMLA leave, the employer must keep track of the amount of such leave the employee has used. This is relatively easy to do when the FMLA leave is taken in full-day increments. Frequently, however, employees (particularly those who qualify for intermittent FMLA leave) utilize their leave in partial-day increments. In those circumstances, the employer must keep track of the number of hours of FMLA leave the employee has used.

This leads to the question of how many hours of FMLA leave is an eligible employee entitled to for the reasons described above? The answer is easy if the employee works a typical eight-hours-per-day/five-days-per-week schedule – 480 (40 x 12) hours. The answer is not as clear if the employee sometimes works overtime. Does overtime missed because of a FMLA-qualifying reason count against the employee and, correspondingly, is the employee entitled to additional hours of FMLA leave because the employee sometimes works overtime? As is the case with many legal questions, the answer is – "It depends." In this instance, it depends upon whether the overtime the employee normally works is considered to be voluntary or mandatory.

The Department of Labor (“DOL”) has addressed the question in a specific regulation, 29 C.F.R. § 825.205(c). The regulation provides that if an employee does not work voluntary overtime hours because of a serious health condition, those hours may not be counted against the employee’s FMLA leave entitlement. If, however, the employee does not work overtime hours that the employee was required to work, the overtime hours missed for a FMLA-qualifying reason "may be counted against the employee's FMLA entitlement." But by the same token, an employee who is normally required to work overtime is entitled to additional hours of FMLA entitlement. This is because an eligible employee is entitled to 12 workweeks of leave. If the hours in the employee's normal workweeks include mandatory overtime, the employee is entitled to more than the 40 hours of FMLA leave per week entitlement involved in the normal eight-hours-per-day/five-days-per-week workweek.

The calculation of how many hours of FMLA leave an eligible employee who normally works mandatory overtime is entitled to is easy if the employee routinely works the same number of hours of overtime each week. If, for example, the employee normally works one hour of mandatory overtime each day (for a total of 45 hours per week), the employee is entitled to 540 (45 x 12) hours of FMLA leave annually. What if the amount of mandatory weekly overtime the employee works varies or is uncertain? The DOL regulation provides that the employer should use a weekly average of the hours scheduled over the 12 months prior to the beginning of the FMLA leave to calculate the employee's leave entitlement. 29 C.F.R. § 825.205(b)(3).

Remember – the key is whether overtime is voluntary or mandatory in your workplace. If it is voluntary, the overtime hours an employee works (or would have worked but for the FMLA leave) should be disregarded both for purposes of determining the amount of FMLA leave to which the employee is entitled and also for purposes of counting the number of FMLA leave hours the employee has used. If the overtime is mandatory, the overtime hours must be counted for both purposes.

For more information on FMLA and other employment issues, contact a member of Ice Miller's Labor, Employment and Immigration practice.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances. 

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