How Do You Calculate FMLA Eligibility? Tell Workers Now

Staying compliant with the Family and Medical Leave Act can be challenging, which makes any guidance from the DOL a useful tool to reassess your policies. A recently updated fact sheet zeroes in on a key area: calculating FMLA eligibility.

In fact, here’s a detail that’s sometimes overlooked: Required overtime hours that an employee doesn’t work because of an FMLA-qualifying reason may be counted as eligible leave time under the law. 

A separate opinion letter from the DOL provides clarification on required overtime and reminds employers to calculate leave time carefully.

The letter responds to a question about whether an employee with a chronic health condition can use FMLA leave to permanently reduce their workday to eight hours, even if they’re normally required to work longer shifts. The short answer: no, FMLA leave isn’t unlimited. But the longer answer reveals something important.

Understanding FMLA and Reduced Schedules

If employees meet eligibility requirements and the reduced schedule is medically necessary, they can use their available leave to cover the extra hours they’re unable to work. For example, if they’re scheduled for a 10-hour shift but can only work eight due to a serious health condition, they may use two hours of FMLA leave – until their 12-week entitlement is used up.

The DOL explains that the law allows eligible employees to work a reduced number of hours per day or week as long as they have leave remaining. 

Once employees exhaust their eligible leave, the employer is no longer required to approve a reduced schedule. At that point, employers may consider other types of leave or engage in the interactive process under the ADA, if applicable.

How to Calculate FMLA Entitlement

When calculating leave entitlement, remember that while the standard is 12 weeks (or 26 weeks for military caregivers), the actual number of leave hours depends on each employee’s regular workweek. This means not all employees are entitled to the same number of leave hours.

Of course, employees aren’t required to take FMLA in weekly increments. Instead, as the DOL explains, employees may use leave in the smallest increment allowed for any other type of leave – though that amount can’t exceed one hour.

If an employer uses different time increments for different types of leave, it must allow FMLA leave in the smallest increment used for any other leave. If increments vary based on the time of day, those differences apply to FMLA as well. Employers are also free to allow smaller increments for FMLA than for other types of leave.

FMLA Leave Year Options: What Employers Can Choose

When it comes to administering FMLA leave, covered employers need to remember that eligible employees take their leave within a designated “leave year.” But this leave year isn’t necessarily the calendar year – and employers have some discretion here.

There are four different ways to define the designated leave year:

• Calendar year (January 1 to December 31)
  
• Any fixed 12-month period (such as the employer’s fiscal year)
  
• A 12-month period starting on the first day an employee takes FMLA leave, and
  
• A rolling 12-month period measured backward from the date an employee uses FMLA leave.

Only the rolling method prevents employees from stacking leave across years and potentially taking more than 12 weeks at once.

Employers must apply the selected method consistently. If the company operates in multiple states and a state law requires a specific method, employers can apply the state-specific rule to those employees and a different method to others.

Employers can change their chosen method but must give at least 60 days’ notice to employees. If an employer fails to select and communicate its leave year, the most employee-friendly method will be used by default.

Opinion Letters: How They Help HR Stay Compliant

DOL opinion letters are official responses to specific legal questions. They don’t change the law but offer insight into how the DOL interprets it. 

Employers that follow the guidance in these letters may have a stronger defense if their FMLA practices are challenged later. 

Key Takeaways for HR Teams

The DOL’s updated fact sheet clarifies how to calculate FMLA eligibility, while the opinion letter provides guidance on how eligibility applies to roles with mandatory overtime.

Establishing a clear process for tracking leave and recognizing when reduced schedules are protected under the FMLA can help HR teams minimize compliance risks.

For more help, check out The Family and Medical Leave Act: An Employer’s Guide.