DOL Opinion Letter Provides Guidance on FMLA Leave Entitlement Calculation

The Department of Labor, or DOL, recently issued an opinion letter, which clarifies how to calculate the number of hours of Family and Medical Leave Act, or FMLA, leave available for eligible employees. While the letter addresses the specifics of a group of employees with an unconventional schedule, it provides valuable insights for calculating the hourly equivalent of FMLA leave and the circumstances when employers should include mandatory versus voluntary overtime as part of this calculation.

FMLA Rules on Leave Entitlement and Overtime

The FMLA allows eligible employees to take up to 12 workweeks of job-protected leave during a 12-month period for defined family and medical reasons.* The regulations indicate that the actual workweek is the basis of this 12-week entitlement and that employers may convert fractions of this workweek to an hourly equivalent, as long as it equitably reflects the employee’s normally scheduled hours.

The DOL provided an example of an employee working a 40-hour workweek being entitled to 480 hours of FMLA leave (40 hours per workweek multiplied by 12 workweeks). However, it also noted that this calculation is based upon the specific employee’s actual schedule, which could be 30 or 60 hours per week.

Another key provision of the regulations involves the treatment of overtime hours. If an employee is required to work overtime but is unable to because of an FMLA-qualifying reason, those hours can be counted against the employee’s FMLA leave entitlement. However, if an FMLA-qualifying reason prevents an employee from working voluntary overtime hours, those hours cannot be counted against the leave entitlement.

Guidance From the Opinion Letter

The DOL examined the calculation of the leave entitlement for a specific group of correctional law enforcement employees who worked 12-hour shifts over a two-week cycle that also included mandatory overtime. It found that the conversion of the 12-workweek entitlement to an hourly equivalent was correct as it “equitably reflects the employee’s total normally scheduled hours” while also appropriately disregarding voluntary overtime. The employer also correctly included any hours the employees would work “but for the FMLA absence,” which could include mandatory overtime.

Key Reminder

While the DOL's opinion letter does not have the full force and effect of law, courts typically grant deference to the agency's interpretive opinions of the laws it enforces, including the FMLA.

You can review the full letter on the DOL website.

The Standard can help you manage FMLA leaves. Please contact your account manager or a representative near you for more information.