The Department of Labor (DOL) Wage and Hour Division’s Opinion Letter, FMLA2025-02-A, provides clarification on how employers must calculate an employee’s total available FMLA leave hours. These rules speak especially for those with non-traditional schedules that include mandatory overtime.
What It Means for Employers
The core takeaway is that employers must calculate an employee’s FMLA entitlement based on their “actual, regularly scheduled workweek.“ Employers would use this method instead of defaulting to a standard 40-hour workweek. Even if the employee’s schedule reflects more or fewer hours, their FMLA leave allotment should reflect their actual hours worked.
Here is what the opinion letter clarifies and what it means for employers:
| AREA | EMPLOYER ACTION (Based on Opinion Letter) |
| FMLA Hours Calculation | Use the employee’s actual, regularly scheduled hours per week or the average scheduled hours over the prior 12 months, rather than automatically using 480 hours (12 workweeks x 40 hours). |
| Mandatory Overtime | You must include mandatory overtime hours in the calculation of the employee’s total FMLA leave entitlement (the 12 workweeks converted to hours) and when tracking leave usage. |
| Voluntary Overtime | You must exclude any additional voluntary hours an employee works when calculating their FMLA leave entitlement and tracking usage. |
| Non-Traditional Schedules | The guidance confirms that for employees working non-traditional schedules (e.g., 12-hour shifts resulting in 84 hours over a two-week period), the calculation should be based on these higher scheduled hours (e.g., 504 hours total entitlement over 12 weeks, as confirmed in the opinion letter example), ensuring the leave equitably reflects the employee’s total normally scheduled hours. |
Putting FMLA Leave Allotments Into Action
In short, FMLA leave must reflect the reality of the employee’s working schedule.
First, let’s look at employees who are on fixed schedules. Employees who regularly work mandatory overtime hours as part of their established schedule are entitled to an equivalent amount of FMLA leave in hours. For example, suppose an employee’s fixed schedule includes 40 regular hours and 10 mandatory overtime hours each week. In that case, you should base their FMLA leave calculation on 50 hours per week, not just the standard 40. The intent behind this clarification ensures that employees are not penalized in terms of their leave entitlement due to their employer’s requirement for mandatory overtime.
This guidance is particularly crucial for employers with employees on non-traditional or fixed schedules that incorporate regular overtime. Such employers should use this updated information to review and revise their current FMLA leave calculation and tracking procedures. Accurate tracking ensures that employees receive the full amount of FMLA leave they are legally entitled to, reflecting their true work commitment and schedule.
Resources: DOL Opinion
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