Meet Mark. Mark works 12-hour shifts, clocking 84 hours every two weeks. One day, he uses 2.5 hours of his FMLA entitlement. The question: how much does he have left?
We know — it makes our head hurt, too. Grab a pain reliever and let’s walk through it.
The New Opinion Letter
On September 30, 2025, the U.S. Department of Labor (DOL) issued Opinion Letter FMLA2025-02-A. The letter tackles a classic, if not necessarily new, headache: how do you translate “12 weeks of FMLA leave” into hours for employees who don’t work a neat 40-hour schedule?
Many employers assume 12 weeks = 480 hours (12 × 40). But that math doesn’t work for Mark. His schedule repeats in two-week blocks: 84 hours every two weeks = an average of 42 hours per week. Multiply that by 12 weeks, and Mark’s total entitlement is 504 hours, not 480.
So, when Mark takes 2.5 hours off, the DOL says: he starts with 504 hours; he uses 2.5, so he has 501.5 remaining. Great! That’s what we thought, but we appreciate the affirmation.
Mandatory vs. Voluntary Overtime
The DOL also clarified that mandatory overtime counts toward entitlement, but voluntary overtime does not. Translation: if the company requires Mark to work it, those hours proportionally increase his FMLA entitlement. If Mark chooses to skip voluntary OT, his FMLA balance doesn’t shrink. Fair enough.
The Half-Week Problem
Here’s where things get sticky.
Because Mark averages 42 hours a week, the DOL says he has 504 hours of leave. But “average” is not the same as “actual.” Consider this scenario:
- Mark has used 11.5 weeks of leave for adoption, leaving him with 21 hours (half of his 42-hour week).
- He then gets sick and needs half a week off.
- Problem: that week Mark is scheduled for 60 hours, and half of 60 = 30 hours.
- Mark only has 21 hours left. He’s short, even though he technically has “half a week” of FMLA left.
See the problem? The math doesn’t always line up neatly with real schedules, particularly in industries that favor or necessitate schedules that don’t align to the traditional 40-hour norm
So what have we learned?
- Yes, mandatory overtime counts.
- Yes, entitlement should be based on the average week.
- But when employees use leave in weeks that aren’t average, things can get messy.
And remember: if Mark is out for his own health condition, the ADA could also come into play. So, don’t rush to judgement about whether Mark is out of his allotted leave just because the math looks off — slow down, double-check and contact your account manager for a second set of eyes.
Bottom Line
Counting every last hour of FMLA can be dangerous, especially when you’re not operating in a standard 40-hour work week environment. If you’re facing a situation like the one we’ve outlined with Mark, it’s worth double checking and consulting with external experts to ensure your measurements are accurate and that your decision is actually compliant based on this latest DOL letter.
Now go treat yourself — we promise next month we’ll have less math!
