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FMLA and Overtime

Can an employee with approved intermittent FMLA after working his regular 8 hours, deny required overtime hours using FMLA as a reason?

Yes. This was specifically addressed in the FMLA Final Regulations that went into effect in January 2009.

An employee can use his or her intermittent FMLA to avoid overtime hours, even mandatory overtime hours. However, obviously, there is a limit on how many hours of FMLA an employee has. Once that limit is reached, the employee must work overtime or face termination.

Example: Tina is approved for intermittent FMLA (for whatever reason.) Tina is scheduled to work 60 hours spread over 5 days per week. Instead, Tina works 40 hours per week (over 5 days) and uses 20 hours per week of FMLA. This is a perfectly legitimate use of FMLA under the new regulations.

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This entry was posted on Monday, June 15th, 2009 at 1:43 pm and is filed under
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14 Responses to “FMLA and Overtime”

  1. jorge medina Says:


  2. Caitlin Says:

    Hi jorge! You are 50% right. Under federal law, an employee is entitled to overtime when he or she works more than 40 hours in the payroll week. So if you worked 45 hours plus took one day of FMLA, you would be entitled to 5 hours of overtime. But if you worked 38 hours and took one day of unpaid FMLA, you are not entitled to any overtime, because you did not work more than 40 hours.
    Under the new 2009 FMLA regulations, an employee who uses intermittent FMLA for a portion of the payroll week is entitled to holiday pay. An employee who used FMLA for the entire payroll week would not be entitled to holiday pay. This is enforced by the US Department of Labor. HTH, and thanks for reading the blogs!~ Caitlin

  3. Mike Thiel Says:

    Hello My question is similar to the above. With ADA leave for a couple of days then working the weekend side by side with fellow employees that are making overtime and I am being paid straighttime. Am I being punished or discriminated upon because I have a disability? Would this be discriminatory? We used to make OT for weekends. Now only after 40 hours. Thank you.

  4. Caitlin Says:

    Hi Mike! No, this is not illegal discrimination. Federal law requires overtime after 40 hours, and the overwhelming majority of employers pay only what the law requires.

    If the employer paid overtime after 40 hours to other workers, but not to disabled workers, that would be illegal discrimination. HTH, and thanks for reading the blogs!~ Caitlin

  5. Coco Says:

    There is mandatory overtime at our worksite, however there is no set overtime hours, some days there is others there are not. How are FMLA hours to be used figured out in this type of situation? Dr. suggesting 8 hr days 40 hr weeks w/no overtime.

  6. Caitlin Says:

    Hi Coco! This happens in many cases. The employee needs to inform the employer that they are unable to work overtime due to a serious health condition, and complete the FMLA certification. FMLA hours used will be based upon the overtime hours actually worked by other employees in the department. If coworkers put in 14 hours of overtime one week, the employee will be charged 14 hours of FMLA. HTH, and thanks for reading the blogs!~ Caitlin

  7. Andrew Says:

    I am being told that the disability services of our company does not track any hours which are not “tour” hours. If I reject mandatory overtime hours on FMLA grounds, do I have to report them to Disability services, and does my current certification grant me that option?

  8. Caitlin Says:

    HI Andrew! The current FMLA regulations permit an employee taking intermittent FMLA to selectively use FMLA to decline to work mandatory overtime hours. For example, an employee scheduled for a 12-hour shift could work 8 hours and use 4 hours of FMLA. This is permitted under FMLA only when a healthcare provider indicates on the certification form that working no more than xx number of hours is medically necessary.

    Is this covered under your current certification? That will depend upon how your healthcare provider completed the certification. The doctor lists the type of leave that is medically necessary and we have no way of knowing what your doctor listed.

    Be aware that like any other type of FMLA, you must follow the employers usual policies on reporting an absence.

    Some of your terminology is unfamiliar to us. We are not clear on what “tour” hours are.

    You should check with HR or disability services to clarify how they will tabulate the overtime hours that you do not work, but it would be very, very unusual for an employer not to count them toward your total 12 weeks of FMLA. If you do not want to “stir the pot” you could assume that these hours are being deducted from your FMLA. HTH, and thanks for reading the blogs!~Caitlin

  9. Mike Thiel Says:

    Hello, I have taken individual ADA leave. Usually one or two days at a time. I find myself working the weekend for straight time-I do not have the mandatory 40 hours. Here is my question if I take an excused ADA day off I am not eligible for overtime if I do not have my 40 hours. However our contract states if I take a Union Bussiness day off (Which i have) I am eligible for overtime as the union day applies towards my 40 hours. I believe this is discriminatory.

  10. Caitlin Says:

    Hi Mike! You can certainly meet with your union rep and try to file a complaint about this, but you are not likely to succeed. We have not seen your contract, but generally taking a union business day off means taking a day off for a union hearing or similar event, not taking a day off under ADA.
    You are working a modified schedule as a reasonable accommodation under ADA. The ADA requires employers to give employees UNPAID time off as a reasonable accommodation. That is pretty clear-cut. There is no requirement that the employer pay you what you would have earned if you had worked. Nor is there any requirement that the employer pay you a higher rate for the time that you do work, because you took time off under ADA.
    There is no requirement that employees who work on the weekend be paid overtime. The requirement under federal law is that the employee be paid overtime when he works more than 40 hours in the payroll week. Since you are not working more than 40 hours, you are not entitled to overtime.
    In a sense, ADA accommodations are always “discriminatory” since you are being treated better than an employee without a disability. Presumably, if you missed this much time and did not have a disability, you would have been terminated.
    If you worked 40 hours during the week, and the employer paid you straight time for working on the weekend simply because you have a disability, that would be illegal discrimination. But there is nothing in the law that entitles you to an overtime rate when you are not working overtime. And under federal law, overtime is defined as “more than 40 hours per week.”
    As the old saying goes, you cannot have your cake and eat it, too. If you are taking time off under ADA as a reasonable accommodation, that time is unpaid. If that time is unpaid, you are working less than 40 hours in the payroll week and therefore not entitled to overtime on the weekends. You are not entitled to the pay you would have received if you had worked those days.
    You could argue that you need to be paid overtime on weekends as a reasonable accommodation for your disability under ADA, but we doubt that is going to work. Nevertheless, unions have accomplished stranger things for their members, and it does not hurt to try. HTH, and thanks for reading the blogs!~ Caitlin

  11. HR Says:

    Our policy indicates that interminent FMLA time will be paid as vacation time. If an employee works more than 40 hours that week and had qualified for FMLA. Should we deduct it from his vacation time?

  12. hrlady Says:

    Hi HR,
    FMLA and how or if you are paid while you are on FMLA are two different things that can run concurrent.
    FMLA entitles an employee to 12 weeks of unpaid time off in a 12 month period. It can be taken in one period of time or as intermittent leave.
    An employer can allow sick time, short term disability (some states require it), vacation or PTO time to be use as pay during the 12 week unpaid period of FMLA. If the employer or the companies’ policy permits the substitution of a benefit for unpaid FMLA time off, then the accrual for that benefit is reduced. For example, an employee is on FMLA for 12 week (unpaid), and the employer allows the employee to use vacation time for pay during the period of FMLA. The employee has two weeks of vacation time, and then two weeks of vacation time is applied to the 12 weeks of unpaid FMLA. The employee’s score sheet then reads zero vacation time left and 10 weeks remaining on unpaid FMLA.
    It is always a good practice to require vacation and other benefits to be used as a substitution for unpaid FMLA leave. If you do not, then you can have an employee out for 12 weeks of unpaid leave, 2 weeks of vacation, and 2 weeks of sick. The employee can be out of work 16 weeks total or more.
    Thank you for reading the

  13. Jane Says:

    We have an EE on intermittent FMLA, she is scheduled for 40 hours per week. She was off on FMLA for an 8 hour day, however, her total hours that week were 36 hours. The supervisor reduced her FMLA hours to 4 (which were paid with PTO hours) to bring the EE to a 40 hour week, so she would use less PTO time.
    How is the FMLA calculated? At 8 hours or at 4 Hours, and can you adjust FMLA hours to use less paid time off?

  14. hrlady Says:

    Hi Jane,
    When an employee takes intermittent leave under the FMLA, the amount of leave actually taken is counted against the employee’s leave entitlement. Remember, there is no requirement for FMLA leave to be paid. Allowing or requiring employees to use PTO during FMLA leave is at the employer’s discretion.
    Even though the employee only needed 4 hours of PTO to cover her normal salary, she still used a full day’s worth (8 hours) of intermittent leave. Thus, her FMLA leave entitlement should be reduced by 8 hours. Whether she worked additional hours during the week is meaningless, she still used 8 hours of leave for the one day and would’ve used 8 hours of leave for the one day if she didn’t work additional hours during the week.
    In theory you could only deduct 4 hours from her FMLA leave entitlement. Doing so obviously benefits the employee. But, you run the risk of not applying FMLA leave entitlements uniformly and consistently to all employees, unless you intend on allowing all employees to do this. Also, not to sound like the FMLA Grinch, this practice allows employees to take more leave time than required. This is a great benefit to offer but consider the bigger picture and the long term effects of such a practice.

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