DOL opinion letter helps employers calculate FMLA leave

How do employers calculate intermittent or reduced schedule leave under the federal Family and Medical Leave Act (FMLA) if employees work 84 hours every two weeks?

That was the question posed to the U.S. Department of Labor (DOL). In an opinion letter published September 29, the DOL responded.

An employer calculated the 12 workweeks of FMLA leave entitlement as equivalent to 504 hours. This calculation was based on the number of hours employees were required to work, which mandated 84 hours of work every two weeks.

The employer wondered whether:

• The calculation of 504 hours (84 divided by 2 = 42; 42 multiplied by 12 = 504) of FMLA leave was appropriate, given the employee’s non-traditional, alternative schedule.
• It was appropriate to exclude from the 12 weeks of FMLA leave overtime hours employees might volunteer to work, but weren’t part of the schedule.
• Overtime hours for which employees could volunteer, but weren’t required to work, and didn’t work due to an FMLA-qualifying reason, shouldn’t count against employees’ FMLA leave entitlement.

Employers commonly convert the 12 weeks of FMLA leave to 480 hours of FMLA leave per leave year for employees who work a 40-hour workweek (40 hours per workweek multiplied by 12 workweeks).

An employee’s actual schedule, however, determines the conversion calculation. If, for example, an employee otherwise would work 30 hours per workweek, the employee gets 360 hours of leave per leave year (30 hours per workweek multiplied by 12 workweeks). An employee who works 60 hours per workweek gets 720 hours per leave year (60 hours per workweek multiplied by 12 workweeks).

In its opinion, the DOL said that the conversion of the 12-workweek FMLA leave entitlement to a 504-hour leave entitlement was fine, as it was consistent with what would be 12 normally scheduled workweeks for an employee working a mandatory 84 hours every 14 days.

The DOL also agreed that the employer should count as FMLA leave any mandatory overtime hours the employee would normally work, but didn’t because of an FMLA absence. Employers shouldn’t, however, count voluntary overtime hours an employee doesn’t work due to an FMLA-qualifying reason as FMLA leave.