The Family and Medical Leave Act (FMLA) entitles eligible employees of covered employers to take 12 “workweeks” of unpaid, job-protected leave for specified family and medical reasons within a 12-month period. But in many cases, including in the energy and maritime sectors, it may be difficult for an employer to calculate the number of hours in a “workweek.”
The WHD’s recent opinion clarifies guidelines for employers whose employees work nontraditional hours, including those who work both mandatory and voluntary overtime.
Employers in many industries use work schedules that fall outside of the typical 40-hour workweek. For example, an employer of correctional law enforcement employees who work a fixed “Pitman Schedule” requiring 12-hour shifts over a two-week cycle, including mandatory overtime, recently asked the United States Department of Labor Wage and Hour Division (WHD) how it should calculate its employees’ entitlement to FMLA leave. James R. Macy, the acting administrator of the WHD, opined that the amount of leave should be calculated according to the employee’s actual, normally scheduled workweek.
The WHD stated that “an employer may calculate the employee’s leave entitlement by converting fractions of a workweek of leave to their hourly equivalent in a manner that equitably reflects the employee’s total normally scheduled hours.” In other words, “the hours that the employee would have worked but for the use of leave.”
For employees who work a traditional 40-hour week, this would equal 480 hours of FMLA leave per year. However, individuals who work more than 40 hours a week, such as law enforcement employees whose normal schedules include mandatory overtime, should be entitled to more than 480 hours of FMLA leave per year, in accordance with their actual work schedules. The WHD found that the employer’s calculation of 504 hours of leave entitlement for its law enforcement employees was in line with the FMLA.
The WHD clarified that although additional required hours, such as mandatory overtime, should be included in an employer’s calculation of yearly FMLA leave, optional additional hours, such as voluntary hours that an employee was not originally scheduled but chooses to work, should not be included. The bottom line is that an employer should calculate an employee’s FMLA leave usage to an hourly equivalent “in a manner that equitably reflects the employee’s total normally scheduled hours.”
Employers should evaluate their FMLA leave policies to ensure that they are consistent with the WHD’s recent guidance.
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