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.
