labor lawAdivision of labor law center

 

One new 2009 FMLA regulation clarifies the issue of overtime under FMLA. Under the new regulation, when overtime is mandatory, an employee can use their FMLA leave to work only 40 hours per week, provided the FMLA has been approved and all the required paperwork is in place.

 

However, when overtime is voluntary, if the employee declines, the time does not count as FMLA leave under the 2009 U.S. Department of Labor regulations.

 

Suppose Susan works in a retail clothing store. She is pregnant, and has been approved for intermittent FMLA leave. During most of the year, overtime is voluntary in the store. In October, Susan’s boss requests that she work 7 hours of overtime during the week. Susan declines. Since the overtime is voluntary, the 7 hours are  not counted towards Susan’s total 12 weeks of FMLA leave.

 

However, in November and December, overtime is mandatory at the store where Susan works, due to the busy holiday shopping season. All employees are expected to put in 45 hours per week. Susan uses her intermittent FMLA to work only 40 hours per week. Because the overtime is mandatory, Susan must use 5 hours per week of FMLA leave.

 

Susan’s situation is very unusual because the business she is in has extreme seasonal variations. Usually, overtime is either mandatory or voluntary at a place of employment, for the entire year.  

 

Under the Family and Medical Leave Act or FMLA, since 1993 employees have been entitled to take up to 12 weeks of unpaid, job-protected leave for a variety of reasons. According to the SHRM, the Society of Human Resource Management, these reasons include the employees serious health condition, such as heart attack, stroke, cancer, depression, OCD or alcoholism. Pregnancy is also covered as a serious health condition. In addition, employees can take FMLA leave to care for an immediate family member who has a serious health condition.

 

Employees can also take FMLA to bond with a newborn or newly adopted child. In addition, FMLA can be used to bond with a newly placed foster child. Leave for baby bonding under FMLA is permitted for both men and women. However, the total FMLA leave for all reasons combined cannot exceed 12 weeks in a 12-month period.

 

 

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1. Posted by: Mary Shepherd

   I work in healthcare and I am forced to work overtime. 25% of the workforce is exempt due to FMLA restrictions. This has caused a hardship to me since I am forced more often to compensate for those with fmla’s. Our job duty description mandates overtime. How can these co-worker be force exempt for the year and burden me. Arent they “unable to perform” their job duties. I can accept an intermittant leave, not a yearly exemption. plz. help before “my knees” give out!

2. Posted by: Amelia

   Hi Mary! An employee can indeed use unpaid FMLA leave to work no more than 40 hours per week. (Some employees even use it to work less, such as 20 hours per week.) FMLA is capped at 12 weeks per year. For an employee who normally works 40 hours per week, that is 480 hours of FMLA total. Theoretically, once the employee has used all of those hours, he or she can be required to work overtime.
   An employee might be entitled to avoid overtime under ADA. That law requires employers to make a reasonable accommodation for an employee who is able to perform the primary duties of his or her job. An altered work schedule is a very frequent accommodation that employers are required to make. (An employer is not required to make an accommodation that would make it almost impossible to operate the business. This type of accommodation is an “undue hardship” under ADA and an employer can decline to make it. However, FMLA time must be granted regardless of whether it is an undue hardship on the employer or not.

   But frankly, none of that concerns you. That is between the other employees and the employer. Many, many healthcare jobs require mandatory overtime every week, even when no one is on FMLA. That is because there are just not enough healthcare workers in this country. Your coworkers aren’t burdening you. Your job is burdening you. Our suggestion would be that you look for a job that does not require any overtime…which is going to be hard to find in your industry. So another option would be to train for a different job or industry.

   The good news is that if, at some point your knees do “give out”, that would be a serious health condition under FMLA (and possibly a disability under ADA) and you would probably qualify for FMLA and/or ADA — and not have to work overtime. HTH, and thanks for reading the blogs.