?Employers that require overtime hours need to be aware of how the federal Family and Medical Leave Act (FMLA) may apply differently to workers assigned to mandatory overtime.
In February, the U.S. Department of Labor (DOL) published an opinion letter confirming that employees can use intermittent FMLA leave when they can’t work required overtime hours due to an FMLA-qualifying reason. This leave can be taken on an hour-by-hour basis.
“The DOL’s position in its 2023 opinion letter is not necessarily new,” explained Joseph Gumina, an attorney with O’Neil Cannon in Milwaukee. “The 2008 updated FMLA regulations provided that an employee could use FMLA leave on a reduced leave schedule. The DOL’s FMLA regulations defined a reduced leave schedule as a leave schedule that reduces an employee’s usual number of working hours per workweek or hours per workday.”
Mandatory overtime is common in certain industries, such as health care, policing and firefighting. Some of those industries must operate 24/7, which is one of the reasons why employers may require overtime work.
“In the health care industry, for instance, it can be common for employees to work longer shifts, such as 12-hour shifts. But keep in mind that state laws governing scheduling and overtime requirements will vary, and that may impact how common these types of longer shifts are in different localities,” said Mary Kate Liffrig, an attorney with Hall Render in Denver.
“The DOL’s position obviously places employers in a quandary as to how to properly handle the situation where working mandatory overtime is an essential function or requirement of the position,” Gumina said.
To ensure legal compliance, when a worker who “has not exhausted their FMLA leave entitlement requests leave, that request should be viewed as a request for FMLA-protected leave, even if the request is for intermittent or reduced schedule leave on an indefinite basis,” Liffrig said.
Employers need to carefully calculate an employee’s used and unused FMLA leave. Someone who typically works 40 hours per week would be eligible for 12 weeks or 480 hours of unpaid FMLA leave per year, if they work for a covered employer.
“If an employee is regularly scheduled to work more than 40 hours per week, the employee is entitled to more than 480 hours of FMLA leave per 12-month period,” Gumina said. “For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.”
Potential Overlap with ADA
It’s possible for an employee to have a serious health condition that allows them to work eight hours per day, but not longer. “Such conditions could include stress, anxiety, cluster headaches, as well as other medical conditions, but only where such conditions otherwise qualify as a serious health condition as that term is defined by the FMLA,” Gumina said.
Sometimes, an employee’s serious health condition may qualify for protections under both the FMLA and the Americans with Disabilities Act (ADA).
“When both laws do apply to an employee’s request for a modified work schedule, the employer must provide leave in a manner under whichever statutory provision applies that affords the employee with the greatest rights,” Gumina said.
Businesses should “make sure they’re complying with each applicable law, not just one or the other,” Liffrig said. “Employers should be aware that employees who have exhausted their FMLA leave entitlements may still have additional rights under another law, like the ADA or state or local leave or accommodation laws.”
Be mindful that the FMLA and the ADA operate in separate legal frameworks.
For example, unlike the ADA, “the FMLA does not permit employers to take into account whether a particular request for leave would cause an undue hardship, meaning that if an employee is entitled to leave under the FMLA, the employer typically cannot deny the use of FMLA leave, even if it would be difficult for the employer to accommodate,” Liffrig said.