Can you deduct overtime from bank of FMLA hours?

Q. Can an employer deduct or count overtime hours from an employee’s FMLA balance? Our employees only work overtime from October through December. During that time, they’re required to work 12-hour days, seven days a week. We have several employees on both continuous FMLA and intermittent leave, and we’d like to deduct the overtime hours they would have worked from their FMLA allotment. What do you think? —J.A., Nebraska

A. We have never encountered an employer that requires employees to work 12-hour days, seven days per week for consecutive months. If you’re not exaggerating, you may have a serious problem.

Addressing your specific question, eligible employees can take 12 weeks of FMLA leave during a 12-month period. That means employees who are gone for an entire week should be charged one week of FMLA time, without regard to whether that week falls during your busy season. With respect to employees taking FMLA intermittently or on a reduced leave schedule, only the amount of leave actually taken can be counted toward the person’s 12-week allotment of FMLA leave.

For example, if an employee who works five days a week takes off one day, the employee would use 1/5 of a week of FMLA leave. Similarly, if an employee works six-hour days (rather than 12) under a reduced leave schedule during your busy season, the employee would use a half-week of FMLA leave each calendar week.