FMLA Challenges During an Employee’s “No-Overtime” Leave

By Marti Cardi, JD

VP Product Compliance
Matrix Absence Management

An employee may be entitled to take Family and Medical Leave Act (FMLA) time off to avoid mandatory overtime. This can occur when (1) a health condition flares up for which the employee has an approved FMLA intermittent leave or (2) the employee’s provider certifies that avoiding overtime will help the employee manage flare-ups.

Taking FMLA leave to avoid a flare-up seems contrary to the FMLA requirement that leave is for incapacitated employees. However, the regulations provide guidance for scenarios, such as in cases of asthma:

“An employee with asthma may be unable to report for work due to the onset of an asthma attack or because the healthcare provider has advised the employee to stay home when the pollen count exceeds a certain level” (29 C.F.R. § 825.102).

Use of FMLA leave to avoid mandatory overtime presents three specific challenges to employers:

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