October 23, 2025
As businesses deal with an uncertain economy, some employers may elect to use overtime in lieu of hiring more employees. While this can be a short-term fix, it also introduces important considerations under the Family and Medical Leave Act (FMLA). With recent guidance from the U.S. Department of Labor (DOL) and the expansion of state Paid Family and Medical Leave (PFML) programs, now is the time for employers to revisit how overtime impacts FMLA entitlement and compliance.
Understanding FMLA entitlements
FMLA leave is calculated based on an employee’s regular workweek. According to federal regulations, if an employee works 40 hours per week, they are entitled to 480 hours of FMLA leave (40 hours multiplied by 12 weeks). An employee working 30 hours per week would receive 360 hours. This calculation forms the foundation of how much leave an employee can take.
Overtime and FMLA: What counts?
When it comes to overtime, the key distinction is whether the hours are regularly scheduled or voluntary. If an employee is regularly scheduled to work 48 hours per week, their FMLA entitlement increases to 576 hours. If they miss mandatory overtime due to a qualifying FMLA reason, those hours count against their entitlement.
Voluntary overtime, on the other hand, does not count toward the FMLA entitlement unless it becomes a consistent part of the employee’s schedule. Employers must be clear and consistent in how they define and document overtime practices.
DOL guidance on intermittent leave and overtime
Past guidance from the DOL confirms that employees may use intermittent or reduced schedule FMLA leave to avoid mandatory overtime. This is particularly relevant in industries like healthcare and public safety where overtime is common. Employers cannot penalize employees who decline voluntary overtime due to a qualifying FMLA condition.
State PFML programs and paid leave coordination
With three new states implementing PFML programs in 2026, employers must understand how these benefits interact with FMLA leave. Key points include:
- Employers cannot require employees to use employer-provided paid leave concurrently with PFML benefits. The DOL confirmed this in a 2025 opinion letter.
- Employees may choose to supplement PFML with paid leave, but it must be voluntary.
- Employers must designate qualifying PFML benefits as FMLA leave and notify employees accordingly.
ADA considerations
Even after FMLA leave is exhausted, employees may still be protected under the Americans with Disabilities Act (ADA). For example, an employee unable to work mandatory overtime due to a disability may be entitled to a reasonable accommodation, such as a modified schedule. Employers should be aware of their dual obligations under the FMLA and ADA.
Compliance tips for employers
To stay compliant and support employee well-being, employers should:
- Audit leave policies to ensure alignment with federal and state laws
- Train managers on the differences between mandatory and voluntary overtime
- Document scheduling practices to clarify what counts as regularly scheduled
- Consider outsourcing FMLA administration to reduce risk and improve consistency
- Communicate clearly with employees about their rights and responsibilities under FMLA and PFML programs
Final thoughts
Overtime is a valuable tool for business continuity, but it must be managed carefully within the framework of the FMLA and other leave laws. Employers that understand the nuances and prioritize both compliance and compassion will be better positioned to support their workforce and avoid costly pitfalls.
