February 09, 2023

Unlimited FMLA Leave? Yep, it’s a thing.

When we think of leave under the federal Family and Medical Leave Act (FMLA), we generally think of an eligible employee’s entitlement of up to 12 weeks of leave in a 12-month period.  Last month, the U.S. Department of Labor issued an opinion letter that shares two good reminders for employers.

  1. The employee’s FMLA entitlement is 12 of the employee’s workweeks of leave. As the DOL reminds us, “an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.” Similarly, if a part-time employee regularly works 20 hours per week, the employee would be entitled to up to 240 hours of FMLA leave in a 12-month period.
  2. FMLA leave could be unlimited. How? Let’s say an employee who regularly works 40 hours per week, has a chronic health condition, and can work no more than 32 hours per week. The employee will use eight hours of FMLA leave per week. In a 12-month period or 52 weeks, the employee will exhaust only 416 of the 480 hours to which the employee is entitled. The DOL reminds us in this scenario, “An employee may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave.” (emphasis added)



Variable work schedules. Where an employee’s schedule varies to the extent that “an employer is unable to determine with any certainty how many hours the employee would otherwise have worked (but for the taking of FMLA leave), a weekly average of the hours scheduled over the 12 months prior to the beginning of the leave period (including any hours for which the employee took leave of any type) would be used for calculating the employee’s leave entitlement. (29 CFR 825.205(b)(3))

Overtime. This opinion letter addressed overtime directly. The regulations also read, “If an employee would normally be required to work overtime but is unable to do so because of a FMLA-qualifying reason that limits the employee’s ability to work overtime, the hours which the employee would have been required to work may be counted against the employee’s FMLA entitlement.” (29 CFR 825.205(c)). And the recent opinion letter reminds employers, “In contrast, voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.”