The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued new guidance clarifying how employers should calculate Family and Medical Leave Act (FMLA) entitlements for employees who work nontraditional schedules. This update is especially relevant for industries in which employees regularly work beyond the standard 40-hour week or follow variable or rotating shifts, such as health care, law enforcement, manufacturing, energy, and maritime operations.
Under the FMLA, eligible employees are entitled to 12 workweeks of unpaid, job-protected leave during a 12-month period for qualifying family or medical reasons. While this is straightforward for employees who work a standard 40-hour week (equaling 480 hours of leave), determining the total number of hours available can be more complex for those who regularly work overtime or longer shifts.
The WHD’s recent opinion clarifies that FMLA leave must be based on an employee’s actual, normally scheduled workweek, not a flat 40-hour assumption. Employers should calculate leave entitlement according to “the hours that the employee would have worked but for the use of leave.” In other words, the employee’s typical work pattern, including required overtime, determines how much leave they are entitled to take.
The guidance also distinguishes between mandatory and voluntary overtime. Required overtime that forms part of an employee’s normal schedule should be included in the total FMLA entitlement, while voluntary or optional hours that employees elect to work should not. This ensures that leave calculations fairly reflect the employee’s typical workload without inflating entitlement for hours that are not regularly scheduled.
Employers should take this opportunity to review their FMLA policies and procedures to confirm that leave entitlements are being calculated correctly. HR teams should ensure that payroll, timekeeping, and leave management systems align with employees’ normal work patterns, especially in industries with extended or rotating shifts.
The WHD’s clarification reinforces that FMLA leave should be applied equitably and consistently with each employee’s standard schedule. By basing calculations on actual hours worked, including mandatory overtime, employers can maintain compliance, reduce risk, and ensure employees receive the full protections that the FMLA provides.
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This article is for informational purposes only and is not intended as legal, tax, or benefits advice. Readers should not rely on this information for taking (or not taking) any action relating to employment, compliance, or benefits. Always consult with a qualified professional before making decisions based on this content.
