Employers that require overtime hours need to be aware of how the federal Family and Medical Leave Act (FMLA) may apply differently to workers assigned to mandatory overtime.
In February, the U.S. Department of Labor (DOL) published an opinion letter confirming that employees can use intermittent FMLA leave when they can't work required overtime hours due to an FMLA-qualifying reason. This leave can be taken on an hour-by-hour basis.
"The DOL's position in its 2023 opinion letter is not necessarily new," explained Joseph Gumina, an attorney with O'Neil Cannon in Milwaukee. "The 2008 updated FMLA regulations provided that an employee could use FMLA leave on a reduced leave schedule. The DOL's FMLA regulations defined a reduced leave schedule as a leave schedule that reduces an employee's usual number of working hours per workweek or hours per workday."
Mandatory overtime is common in certain industries, such as health care, policing and firefighting. Some of those industries must operate 24/7, which is one of the reasons why employers may require overtime work.
"In the health care industry, for instance, it can be common for employees to work longer shifts, such as 12-hour shifts. But keep in mind that state laws governing scheduling and overtime requirements will vary, and that may impact how common these types of longer shifts are in different localities," said Mary Kate Liffrig, an attorney with Hall Render in Denver.
"The DOL's position obviously places employers in a...
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