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In a February 9 opinion letter, the U.S. Department of Labor’s Wage and Hour Division (WHD) indicated that leave under the federal Family and Medical Leave Act (FMLA) may be used by an employee to indefinitely eliminate working mandatory overtime.

The letter was written in response to an employer asking, “whether an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a health care provider certifies that the employee has a medical need to limit their schedule.”

Opinion letter scenario

The employer that submitted the letter to the WHD had multiple employees with FMLA certifications supporting leave from work after working eight hours. The employer, however, needed 24-hour coverage and, thus, required employees to work more than the eight hours.

Situations involving schedule limitations, pondered the employer, might be “better suited” for reasonable accommodations under the federal Americans with Disabilities Act (ADA) than for FMLA leave.

The WHD pointed to the general concept of the FMLA; that “employers must permit employees to take intermittent or reduced schedule FMLA leave when it is medically necessary due to the employee’s serious health condition.”

Employees who would normally be required to work overtime but are unable to do so because of an FMLA-qualifying reason may use FMLA leave for overtime not worked. The overtime hours not worked are counted against employees’ allotted 12 weeks. This process can continue until employees either exhaust their FMLA leave or no longer have a need for leave.

In some situations, employees might never exhaust all 12 weeks of FMLA leave in a 12-month leave year, so employees may continue to limit their workdays indefinitely, thus eliminating the required overtime.


Leave provisions under the FMLA are wholly distinct from the reasonable accommodation obligations of employers covered under the ADA, but the two laws could run concurrently.

If an employee needs leave for a serious health condition under the FMLA and is also a qualified individual with a disability under the ADA, employers must observe the requirements from both laws and apply them in a manner that assures the most beneficial rights and protection to the employee.

What is an opinion letter?

Opinion letters serve as a means by which the public can develop a clearer understanding of what FMLA compliance entails. These letters, while not official laws or regulations, may be used as guidance for all employers and relied upon as a good faith defense to claims.

Key to remember: Employees may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible, have a qualifying reason for leave, and have FMLA leave available, even if this results in the elimination of working overtime. It’s possible that this limited schedule is also an ADA reasonable accommodation.