The Family and Medical Leave Act (FMLA) is a foundational federal law that helps employees balance work and family responsibilities. Enacted in 1993, the FMLA entitles eligible employees of covered employers to take up to 12 workweeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons. These include the birth or adoption of a child, caring for a family member with a serious health condition, or dealing with the employee’s own serious health condition. During FMLA leave, group health insurance coverage must continue under the same terms as if the employee had not taken leave. The FMLA is administered by the U.S. Department of Labor (DOL).

Employers routinely convert the 12 workweeks of FMLA leave into an hourly equivalent for easier tracking of employee leave usage. For example, a typical 40-hour workweek results in 480 hours of FMLA leave per year (40 hours x 12 weeks). This remains the default rule for employees working a fixed, 40-hour workweek. However, when employees have a variable work schedule, employers must calculate total FMLA leave entitlements differently, as the DOL made clear recently.

What FMLA Entitlement Rule Applies When an Employee Works Variable Hours?

Calculating FMLA leave entitlements for employees with variable or fluctuating workweeks is not a straight-up 480 hours each 12-month period. Instead, FMLA leave entitlement must be adjusted to reflect the employee’s actual work schedule. Misapplication of employee FMLA leave entitlements can lead to DOL investigations, litigation, and costly settlements, which have risen sharply in recent years.

In FMLA Opinion Letter 2025-02-A, the DOL elaborated on how employers must calculate total FMLA leave hours for employees who work variable or fluctuating workweeks, using the example of correctional law enforcement employees working a “Pitman Schedule” that involves 12-hour shifts over a two-week cycle and mandatory overtime, with the possibility for employees to volunteer for additional hours. The FMLA’s regulatory framework, applicable to determining total employee leave entitlement, were summarized by the DOL as follows:

• FMLA Leave Must Be Paid on an Actual Workweek Basis: FMLA entitlement is based on the employee’s actual workweek, not a standard 40-hour workweek assumption. For intermittent or reduced schedule leave, employers must calculate leave in proportion to the hours the employee would have worked but for the leave.
  • Example: Alex is a project manager whose weekly hours fluctuate. His average weekly hours over the past 12 months are 42. His FMLA entitlement is 504 hours (42 x 12).

• FMLA Leave Calculation When Employee Workweeks are Uncertain: If an employer cannot determine with certainty the hours the employee would have worked, the calculation must use the weekly average of hours scheduled over the prior 12 months, including any leave taken during that period (29 CFR §825.205(b)(3)).
  • Example 1: Taylor is a consultant with weekly hours ranging from 20 to 60. Her average is 38 hours/week, so her FMLA entitlement is 456.
  • Example 2: Jordan is a freelance designer with no set schedule. His average is 25 hours/week, resulting in 300 hours of FMLA entitlement.

• Voluntary Overtime Must Be Excluded from the Average Weekly Hours Calculation: Voluntary hours that employees may choose to work, but are not required to work, should not be included in the FMLA entitlement calculation. Mandatory overtime must be included in the calculation.

• Deducting For Leave Usage by Variable Workweek Employees: Only the hours the employee would normally be scheduled to work (including mandatory overtime) are deducted from their entitlement.
  • Example: Mark, a correctional police officer, works 84 hours every two weeks. His 12-workweek FMLA entitlement is 504 hours. If he takes 2.5 hours of FMLA leave, only those hours are deducted.

Takeaways From the DOL’s Opinion Letter and Employer Best Practices:

• Establish Clear Calculation Protocols: Using actual scheduled hours when known; apply the 12-month averaging method when schedules are unpredictable. Convert entitlement into hours (e.g., 12 weeks x average weekly hours) for easier tracking.
• Integrate Compliance into HR Systems: Configure leave-management software to handle variable schedules and fractional workweeks. Automate alerts for approaching entitlement limits.
• Document and Communicate: Maintain accurate records of scheduled hours, leave taken, and calculation methodology. Provide employees with written notice of their FMLA entitlement in hours and explain how intermittent leave will be tracked.
• Train HR and Supervisors: Educate staff on distinguishing intermittent leave from reduced schedules and on proper calculation methods. Reinforce the requirement to include mandatory overtime in entitlement calculations.
• Audit and Review: Conduct periodic audits of FMLA leave usage for employees with variable schedules. Correct errors promptly to avoid DOL penalties or litigation.
• Medical Certification and Recertification: Follow DOL timelines for certification (15 days) and recertification for intermittent leave. Ensure documentation supports medical necessity for reduced or intermittent schedules.

Conclusion

The FMLA remains a vital protection for employees facing family or medical challenges. It also remains a compliance challenge for employers. The DOL’s recent Opinion Letter offers important guidance for employers with complex scheduling, such as law enforcement agencies, and professional employees with variable work schedules. By basing FMLA calculations on actual scheduled hours, including mandatory overtime—and excluding voluntary overtime, employers can ensure compliance and fairness. Adopting best practices in documentation, communication, and training will help organizations support their workforce while meeting legal obligations.

If you have questions about your policies and practices to ensure compliance with the FMLA or other federal or state employment laws, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.