A recent article discussed how workers are increasingly being asked/required by employers to work overtime. Meanwhile, those same employers are facing challenges when it comes to FMLA.

While organizations reap some benefits when employees work beyond their typical hours, doing so introduces several cons to consider as well. As we approach the holiday season and employees clock more hours, it’s as good a time as any for employers to review how overtime and FMLA works — and what this means for employees.

FMLA entitlement

Before we address the overtime issue, we need to consider how FMLA calculates the amount of entitlement available to an employee. §825.205 (b) Calculation of Leave outlines how leave is to be calculated. Per the regulations, an employee’s workweek is the basic foundation of the leave entitlement. For example, if an employee works five days per week, eight hours per day for a total of 40 hours per week, the employer will calculate their available entitlement by multiplying the employees’ scheduled hours by the maximum number of weeks available under FMLA. In this example, an employee working a 40-hour week would have 480 hours available to them (40 hours x 12 weeks). Whereas an employee who works 30 hours a week would receive 360 hours (30 hours x 12 weeks).

Overtime considerations

When considering overtime, let’s look at §825.205 (c) Overtime, which details how we address overtime as it relates to the amount of entitlement available. Per the regulations, if an employee is regularly scheduled, that time can count towards FMLA entitlement. For example, if an employee is regularly scheduled for 48 hours per week, the amount of available entitlement would be available to the employee would be 576 hours (48 hours x 12 weeks) and if they are unable to work the overtime because of a qualifying FMLA reason, it would count against their entitlement.

The key here is to determine whether the overtime is regularly scheduled or voluntary. Some employers are requiring their employees to work mandatory overtime because of staffing shortages. These shifts are not optional and are being considered part of an employee’s normal workweek. That means if an employee takes FMLA leave, that mandatory overtime could be eligible for FMLA coverage. Conversely, if an employer asks an employee to voluntarily work overtime, meaning that it is not regularly scheduled, and the employee is unable to work the requested overtime due to an FMLA reason, it would not be covered by FMLA.

Next steps for employers

Employers should recognize how they approach overtime when they are using it to schedule employees. The U.S. Department of Labor (DOL) issued an opinion letter earlier this year that addresses how employees could use intermittent or reduced schedule leave to avoid working mandatory overtime and have it protected under FMLA. This can have a significant impact on industries like healthcare and public safety where mandatory overtime is a common practice. If an employer says that scheduled overtime is voluntary to avoid adding into FMLA entitlement calculations, they cannot hold that against an employee should they choose to not work the overtime.

While the use of overtime is a common business practice in several industries, employers should be aware of the impact these extra hours may have on their employees, not only from a compliance standpoint but their mental well-being as well. Additionally, employers should consider their obligations under FMLA and the potential for employees to use overtime hours to extend their FMLA entitlement indefinitely from year to year.

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Source: NBC news, November 2023