In September 2025, the U.S. Department of Labor’s Wage and Hour Division released Opinion Letter FMLA2025-02-A, clarifying how Family and Medical Leave Act (FMLA) hours should be calculated for employees who work long or nontraditional shifts. For workers with fixed 12-hour shift schedules—such as nurses, correctional officers, and first responders—this letter provides critical guidance on how leave entitlement is determined and applied.
Table of Contents
- FMLA Leave Must Match Your Actual Work Schedule
- Voluntary Overtime Does Not Affect FMLA Entitlement
- How Employers Must Count FMLA Leave Used
- Why This Matters for Shift Workers
- What This Means for Employees
- Final Thoughts
FMLA Leave Must Match Your Actual Work Schedule
According to the opinion letter, an employee’s FMLA entitlement must reflect their normal workweek, including any mandatory overtime. This means that if you are required to work a rotating 12-hour schedule that averages 84 hours every two weeks, your annual FMLA entitlement will be based on that full schedule.
Example:
A correctional officer working an 84-hour biweekly schedule would be entitled to:
- 84 ÷ 2 = 42 hours per week
- 42 × 12 weeks = 504 hours of FMLA leave per year
This is a shift from how some employers previously calculated leave based on a standard 40-hour workweek, which could shortchange workers on longer schedules.
Voluntary Overtime Does Not Affect FMLA Entitlement
The DOL also clarified that voluntary overtime should not be included when calculating FMLA leave entitlement. This means:
- Employees don’t gain extra leave because they often volunteer for overtime.
- They also don’t lose leave if they decline voluntary overtime due to a qualifying health condition.
Only required hours—not hours you choose to work—are factored into your leave entitlement.
How Employers Must Count FMLA Leave Used
Employers are obligated to deduct only the amount of leave actually taken, based on the employee’s regular schedule. So, if an employee takes 2.5 hours off during a scheduled 12-hour shift for a medical appointment, only 2.5 hours of FMLA leave should be counted.
The DOL’s example involved an employee named Mark, who had 504 FMLA hours. When he took 2.5 hours off for treatment, his balance correctly dropped to 501.5 hours.
This proportional tracking ensures that workers aren’t penalized by having entire shifts deducted for partial absences.
Why This Matters for Shift Workers
This clarification is particularly important for employees who:
- Work rotating 12-hour shifts
- Are subject to mandatory overtime
- Have nonstandard or fluctuating schedules
Before this guidance, there was inconsistency in how employers calculated leave:
- Some ignored mandatory overtime, reducing an employee’s total FMLA entitlement.
- Others included voluntary overtime, inflating the hours and penalizing employees who didn’t work extra shifts.
The new opinion letter removes ambiguity and reaffirms that FMLA protections must be applied fairly—based on what an employee is actually required to work.
What This Means for Employees
If you’re a shift worker, this opinion letter strengthens your ability to access FMLA leave fairly and accurately. It ensures that the number of hours you’re entitled to is based on your actual required schedule, not a generic 40-hour standard—and not inflated or deflated by voluntary overtime.
When requesting leave, you can cite Opinion Letter FMLA2025-02-A to help make your case for accurate leave calculations. This is especially useful if your schedule differs from traditional office hours or includes required overtime.
Final Thoughts
The Department of Labor’s new opinion letter provides much-needed clarity for employees working extended or irregular shifts. By reinforcing that mandatory overtime must be included—and voluntary overtime excluded—in FMLA calculations, the DOL ensures that leave entitlements are both fair and legally sound.
For shift workers managing long hours and personal responsibilities, this clarification is a step toward more predictable and equitable use of FMLA protections.
Source: U.S. Department of Labor Opinion Letter FMLA2025-02-A, September 30, 2025.
