Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—DOL Clarifies How Employers Should Calculate FMLA Leave for Overtime + Other Non-Traditional Schedules, (Oct 21, 2025)

By Luke P. Breslin of Jackson Lewis P.C.

Takeaways

• The Department of Labor Wage and Hour Division recently released an opinion letter regarding calculation of hours of FMLA leave for individuals whose schedules include mandatory overtime and who may volunteer for additional hours.

• The opinion letter clarified that employers should calculate FMLA leave hours based on an employee's actual, normally scheduled workweek — which includes any mandatory overtime hours and excludes any additional voluntary hours.

• Although the opinion letter restates fairly established principles of FMLA entitlement calculation, it provides helpful guidance for employers when calculating FMLA hours for employees who work non-traditional work schedules.

Related links

• FMLA2025-02-A (FMLA Calculation Opinion Letter)

• DOL’s First Batch of Trump 2.0 Opinion Letters Address Tip Pools, Emergency Pay + Joint Employment

Article

The U.S. Department of Labor (DOL) Wage and Hour Division issued a new opinion letter on Sept. 30, 2025, explaining the proper method to calculate the hourly equivalent of an employee’s available leave under the Family and Medical Leave Act (FMLA). Responding to a request for an opinion on how to calculate the number of hours of FMLA available to correctional law enforcement employees who work 12-hour shifts over two-week periods, including mandatory overtime hours, DOL said calculation should be based on the employee’s “actual, regularly scheduled workweek.”

The DOL’s guidance is helpful for all employers faced with calculating the hourly equivalent of an employee's 12 weeks of FMLA leave.

The DOL considered the FMLA's statutory text, which provides that eligible employees may generally take up to “12 workweeks of leave during a 12-month period.” The DOL clarified that employees do not accrue FMLA leave at a specific hourly rate, but the FMLA regulations require FMLA leave hours be calculated to “equitably reflect[] the employee's total normally scheduled hours,” which are “generally the hours the employee would have worked but for the use of leave.”

The DOL evaluated the proper calculation of FMLA leave time for employees whose published schedules included 12-hour shifts over a two-week period, amounting to a total of 84 hours every two weeks, or 504 hours over a 12-week period. The DOL noted employers will typically convert the “12 workweeks of leave” to 480 hours of FMLA leave based on a traditional 40-hour workweek. It explained, however, that employers should use an employee’s actual scheduled hours per week, or average scheduled hours per week over the prior 12 months, to calculate the total number of FMLA leave hours an employee is entitled to use.

• The DOL confirmed that if an employee’s regular, published schedule includes mandatory overtime hours, these hours should be considered when calculating FMLA leave hour entitlement and usage.

• Further, the DOL noted that employers should not consider any additional voluntary hours employees are not required to work for purposes of calculating FMLA leave hour entitlement and usage.

• Finally, the DOL concluded that in this particular case, the employer was doing it right. The employer's calculation of its employee's leave entitlement as a total of 504 hours based on 84 regularly scheduled hours every two weeks, including mandatory overtime but excluding additional voluntary hours, was correct.

Calculating an employee’s FMLA leave entitlement and subsequent usage can often be a tricky exercise, especially for employers with employees who work non-traditional schedules. The Sept. 30, 2025, opinion letter, FMLA2025-02-A, provides helpful clarification to guide employers through this calculation process and ensure FMLA leave hours are properly calculated and tracked.

This opinion letter follows the DOL’s June announcement that it was reinstating the opinion letter program. It was one of several recently published DOL letters, including those addressing compliance under the Fair Labor Standards Act (FLSA).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Luke P. Breslin

Jackson Lewis P.C.

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Attorneys: Luke P. Breslin (Jackson Lewis).

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