Human Resource Blog

FMLA and Overtime

An employee requested 2 weeks of FMLA after the birth of his child. During that 2 week period, he claimed he was on the overtime list and should have been contacted for those situations which were outside of his normal work hours since he is only on FMLA for 8-hours. Is an agency required to contact employees on FMLA to offer them overtime?

No, under current regulations you were not required to contact this employee to offer him overtime work while he was on FMLA, for a number of reasons.

First, under the FMLA regulations introduced in 2009, an employee who regularly works overtime can use FMLA to work only 40 hours per week. Suppose Kathy normally works 60 hours per week and has a serious health condition such as a heart ailment. She can use 20 hours per week of FMLA to reduce her work schedule to 40 hours per week.

However, there is no requirement under FMLA that an employee must be allowed to use FMLA for normal work hours but permitted to work overtime. For one thing, under federal law overtime is defined as working more than 40 hours in the payroll week. Therefore, if Kathy used 40 hours per week of FMLA and worked 20 hours per week, that 20 hours would not be overtime — they would be straight time. This is true, even if the 20 hours were outside Kathys normal work shift. This is also true, even if the employee was using vacation or sick time for part of the leave. Suppose Kathy used 40 hours of sick leave while on FMLA this week, and worked 20 hours. Those 20 hours would be straight time.

Second, employees can use FMLA only for his or her normally scheduled work hours. In this case, it sounds like the employee was not normally scheduled to work more than 40 hours per week – overtime was sporadic, and not part of the normal work week.

Presumably, your employee used a notification form such as WH-381 (below) to request FMLA, and you provided approval on a form such as WH-382 (below). Normally the employee would request FMLA from (date) to (date) — for example, from January 1 to January 15. That would mean that the employee was not available for work at all during that period. In your notification form, you should have specified if the leave granted was intermittent or continuous. In the case of specific dates, it is continuous.

But perhaps most importantly, under FMLA fathers as well as mothers are entitled to time off to care for and bond with a new baby. However, the employer can require that this time off be continuous, rather than intermittent. When an employee takes FMLA for a serious health condition, employers must permit the worker to take the time either intermittently or continuously, as the employee prefers. This restriction does not apply to FMLA for care of a newborn or baby bonding — the employer can require that such leave be continuous, and most employers do.  If you had permitted this worker to take FMLA for 8 hours on Monday, then work 4 hours on Monday, and take 8 hours of FMLA on Tuesday, that would have been intermitten FMLA.

You are under no obligation to provide intermittent FMLA in these circumstances. Therefore, your procedures were correct.

Find the suggested FMLA forms at: http://www.dol.gov/whd/fmla/index.htm