Question: We generally give everyone 480 hours in their federal Family and Medical Leave Act (FMLA) leave bank. We have a production employee whose schedule requires them to work 86 hours every two weeks, including mandatory overtime. They have requested leave under the FMLA and believe they’re entitled to more than 480 hours of leave. Given their work schedule, are they correct?
Answer: Yes, assuming they satisfy the FMLA eligibility requirements. The U.S. Department of Labor (DOL)’s Wage and Hour Division recently published an opinion letter clarifying how FMLA applies to work schedules that include both mandatory and voluntary overtime.
Calculating FMLA Leave Entitlement: Convert Workweeks to Hours Based on Each Employee’s Actual Schedule
Employees may generally take up to 12 “workweeks of leave” in a 12-month period for qualifying FMLA leave reasons (up to 26 workweeks of leave to care for a servicemember). Employees do not accrue FMLA-protected leave at any specific hourly rate, however the amount of FMLA leave available to an employee is based on the number of hours the employee works in a normal workweek. To determine the appropriate amount of an employee’s FMLA leave entitlement, you may convert the workweek to its hourly equivalent that reflects the employee’s actual schedule (including normally scheduled hours such as mandatory overtime). For example, if an employee is set to work 30 hours per week, then they’re entitled to 360 hours of leave per leave year (30 hours per workweek multiplied by 12 workweeks), or an employee who is set to work 50 hours per workweek will be entitled to 600 hours of leave per leave year (50 hours per workweek multiplied by 12 workweeks). If the employee’s schedule varies from week to week, then you may use a weekly average of the hours schedule over the 12 months prior to the beginning of the leave period to calculate the employee’s leave entitlement. So, in the question above, the employee will be entitled to 516 hours of FMLA (average of 43 hours per workweek multiplied by 12 workweeks), rather than the 480 hours you calculated for them originally.
When it comes to using FMLA leave, you can require an employee to use FMLA leave if they are unable to work mandatory overtime due to a qualifying reason. On the other hand, you may not deduct from their FMLA leave bank for voluntary overtime hours that an employee cannot work due to an FMLA-qualifying reason.
This area of FMLA leave administration can be tricky for employers, so Vigilant members contact your assigned Vigilant Law Group employment attorney with any specific questions. For an overview on how to calculate workweeks for FMLA intermittent leave, see our Legal Guide, FMLA: Calculation of a Workweek for Intermittent Leave.
