7.3 FMLA, FLSA Overtime/Comp Time Rules (29 U.S.C. § 207(o)), Pregnant Workers Fairness Act & PUMP Act

7.3 FMLA, FLSA Overtime/Comp Time Rules (29 U.S.C. § 207(o)), Pregnant Workers Fairness Act & PUMP Act

Public sector wage, hour, and employee leave administration involves unique statutory provisions designed specifically for governmental operations. Public HR leaders must master the intricate mechanics of the Family and Medical Leave Act of 1993 (FMLA), the Fair Labor Standards Act (FLSA) public agency rules—especially Compensatory Time Off under 29 U.S.C. § 207(o) and Section 7(k) public safety work periods—along with modern statutory protections under the Pregnant Workers Fairness Act (PWFA) and the PUMP for Nursing Mothers Act.

1. Family and Medical Leave Act (FMLA) in Public Agencies

Enacted to balance workplace demands with family medical needs, the FMLA (29 U.S.C. § 2601 et seq.; 29 CFR Part 825) grants eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period for qualifying family and medical reasons, or up to 26 workweeks of military caregiver leave.

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|                         FMLA COVERAGE & ELIGIBILITY IN GOVERNMENT                                 |
|                                                                                                   |
|   COVERED EMPLOYER (29 CFR § 825.108):                                                            |
|   • ALL Public Agencies (State, Municipal, County, School Districts, Federal Executive Agencies)  |
|     are covered employers REGARDLESS of total employee count (even with <50 employees).           |
|                                                 |                                                 |
|                                                 v                                                 |
|   ELIGIBLE EMPLOYEE CRITERIA (Must meet ALL THREE):                                               |
|   1. 12 Months of Service (Need not be consecutive; 7-year lookback permitted).                   |
|   2. 1,250 Hours Worked during the 12 months immediately preceding the commencement of leave      |
|      (Actual FLSA working hours; paid sick, vacation, or holiday time does NOT count).            |
|   3. Employed at a Worksite where the agency employs 50 OR MORE EMPLOYEES WITHIN 75 MILES.       |
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Qualifying Leave Reasons:

1. Bonding Leave: Birth of a child, placement of a child with the employee for adoption or foster care (must be taken within 12 months of birth/placement).
2. Serious Health Condition (SHC) of Employee: An illness, injury, impairment, or physical/mental condition that involves inpatient care in a hospital or continuing treatment by a healthcare provider (e.g., incapacity of >3 consecutive calendar days plus two doctor visits within 30 days, or one visit plus a regimen of continuing treatment).
3. Care for Immediate Family Member: To care for a spouse, child (under 18, or 18+ and incapable of self-care due to disability), or parent with a serious health condition (excludes in-laws, grandparents, or siblings unless in loco parentis existed).
4. Qualifying Exigency Leave (Military): Up to 12 weeks for qualifying exigencies arising from a spouse, child, or parent being on covered active duty or call to active duty.
5. Military Caregiver Leave: Up to 26 workweeks of leave in a single 12-month period to care for a covered servicemember or veteran with a serious injury or illness incurred in the line of duty.

The 12-Month Period Calculation Methods:

Public employers can select one of four statutory calculation methods in their written policy (29 CFR § 825.200):

• Calendar Year: January 1 to December 31.
• Fixed Year: Fiscal year or employee anniversary date.
• Rolling Forward: 12-month period measured forward from the first date FMLA leave is taken.
• Rolling Backward (Lookback Method - Best Practice): 12-month period measured backward from the date an employee uses any FMLA leave. This method is strongly recommended for public employers because it prevents employees from "stacking" 12 weeks at the end of one year and 12 weeks at the start of the next (totaling 24 consecutive weeks).

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|                         FMLA MEDICAL CERTIFICATION WORKFLOW                                       |
|                                                                                                   |
|   [EMPLOYEE GIVES NOTICE]   ===> Agency provides Notice of Eligibility & Rights (WH-381) within   |
|                                  5 BUSINESS DAYS, along with Medical Certification form (WH-380). |
|                                                 |                                                 |
|   [CERTIFICATION DEADLINE]  ===> Employee must return completed form within 15 CALENDAR DAYS.     |
|                                                 |                                                 |
|   [DEFICIENT CERTIFICATION] ===> If incomplete/insufficient, agency must give written notice and  |
|                                  provide 7 CALENDAR DAYS to cure the deficiency.                  |
|                                                 |                                                 |
|   [SECOND & THIRD OPINIONS] ===> If agency doubts validity, it may require a Second Opinion at    |
|                                  AGENCY EXPENSE. If 1st & 2nd conflict, a Third Binding Opinion   |
|                                  by a mutually agreed provider is conducted at AGENCY EXPENSE.    |
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2. Fair Labor Standards Act (FLSA) & Public Sector Comp Time (29 U.S.C. § 207(o))

In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), the Supreme Court ruled that the Fair Labor Standards Act applies fully to state and local governments. In response to fiscal concerns raised by municipalities, Congress enacted the 1985 FLSA Amendments, adding Section 7(o) (29 U.S.C. § 207(o)) to allow public agencies to utilize Compensatory Time Off ("Comp Time") in lieu of cash overtime.

Core Rules of FLSA Comp Time:

1. Pre-Work Agreement Required: Comp time can only be used pursuant to an agreement between the agency and the recognized collective bargaining representative, or an individual memorandum of understanding signed prior to the performance of overtime work (29 CFR § 553.23).
2. Rate of Accrual: Accrual must be at the rate of not less than one and one-half (1.5) hours of compensatory time for each hour of overtime worked.
3. Statutory Accrual Caps:
   • 480 Hours Maximum: For employees engaged in public safety activities (police, corrections), emergency response activities (firefighters, paramedics), and seasonal activities (lifeguards, snowplow drivers). This represents 320 hours of actual overtime worked.
   • 240 Hours Maximum: For all other non-exempt public employees (administrative assistants, maintenance technicians, utility workers). This represents 160 hours of actual overtime worked.
   • Mandatory Cash Overtime Above Cap: Once an employee reaches the statutory cap, the agency must pay cash overtime at time-and-a-half for all subsequent overtime hours worked.
4. Usage and "Unduly Disrupt" Standard: An employee who has requested the use of accrued comp time must be permitted to use it within a "reasonable period" after making the request, unless doing so would unduly disrupt the operations of the public agency (29 U.S.C. § 207(o)(5)). Courts have held that requiring an agency to pay overtime to another employee to cover the shift does not constitute an undue disruption.
5. Mandatory Comp Time Drawdown: In Christensen v. Harris County, 529 U.S. 576 (2000), the Supreme Court affirmed that public employers have the lawful right to compel employees to schedule and use accumulated comp time to reduce agency financial liabilities, even without employee consent, provided no CBA prohibits it.
6. Separation Payout Rate: Upon separation from public employment (resignation, retirement, discharge), all unused comp time must be paid out at a rate not less than the higher of:
   • The average regular rate received by the employee during the last 3 years of employment; or
   • The final regular rate received by the employee.

FLSA Section 7(k) Exemption for Public Safety:

Under 29 U.S.C. § 207(k) and 29 CFR Part 553, public agencies can establish established work periods (from 7 to 28 consecutive days) for law enforcement and fire protection personnel instead of the standard 40-hour workweek:

• Fire Protection Personnel: Overtime is owed only after 212 hours worked in a 28-day period (or 53 hours in a 7-day period).
• Law Enforcement Personnel: Overtime is owed only after 171 hours worked in a 28-day period (or 42.75 hours in a 7-day period).

Public Sector Salary Basis Rule (29 CFR § 541.710):

Under general FLSA white-collar exemption rules (Executive, Administrative, Professional), exempt employees must be paid on a "salary basis" without deductions for partial-day absences. However, recognizing constitutional public accountability principles (which mandate that public funds only be paid for hours actually worked), 29 CFR § 541.710 allows public employers to deduct pay for partial-day absences of less than one day when an exempt employee has exhausted all accrued paid leave (sick/vacation), without destroying their exempt status.

3. Pregnant Workers Fairness Act (PWFA) of 2023

Enacted as part of the Consolidated Appropriations Act of 2023, the Pregnant Workers Fairness Act (PWFA, 42 U.S.C. § 2000gg et seq.; 29 CFR Part 1636) fundamentally transformed public sector workplace protections for pregnant workers.

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|                         PWFA VS. ADA & TITLE VII DISTINCTIONS                                     |
|                                                                                                   |
|   TITLE VII (Pregnancy Disc. Act)   ADA / ADAAA                       PWFA (2023)                 |
|   +-------------------------------+ +-------------------------------+ +-------------------------+ |
|   | • Prohibits intentional bias  | | • Requires accommodation only | | • Requires reasonable   | |
|   |   and disparate treatment.    | |   for severe complications    | |   accommodations for    | |
|   | • Requires comparator proof   | |   rising to substantial       | |   KNOWN LIMITATIONS of  | |
|   |   (treating pregnant workers  | |   disability (e.g., pre-      | |   healthy pregnancy,    | |
|   |   same as other injured staff)| |   eclampsia, gestational DM). | |   childbirth & related  | |
|   | • Young v. UPS (2015).        | | • Excludes normal pregnancy.  | |   medical conditions.   | |
|   +-------------------------------+ +-------------------------------+ +-------------------------+ |
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Key Operational Rules of the PWFA:

1. Temporary Inability to Perform Essential Functions: Unlike the ADA, under the PWFA an employee is considered "qualified" even if they temporarily cannot perform one or more essential functions, provided:
   • The inability is for a temporary period;
   • The essential function could be performed in the near future (for pregnancy, presumed up to 40 weeks); and
   • The inability can be reasonably accommodated (e.g., temporarily reassigning heavy lifting or patrol duties).
2. Predictable Assessments (The "Four Simple Accommodations"): Under EEOC PWFA regulations, four specific accommodations are deemed so straightforward that requesting medical documentation is generally unreasonable and unnecessary:
   • Allowing carrying or drinking water near the workstation;
   • Permitting additional restroom breaks;
   • Allowing sitting for standing roles (or standing for sitting roles); and
   • Permitting breaks to eat and drink as needed.
3. Prohibited Agency Actions: A public employer cannot:
   • Force a pregnant employee to accept an accommodation other than one reached through the interactive process;
   • Deny employment opportunities based on the need for accommodation;
   • Force an employee to take leave (paid or unpaid, including FMLA) if another effective workplace accommodation exists;
   • Retaliate or coerce any individual exercising PWFA rights.

4. Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

Enacted alongside the PWFA, the PUMP for Nursing Mothers Act of 2022 (Pub. L. 117-328) amended Section 18D of the FLSA (29 U.S.C. § 218d) to extend lactation workplace protections to all exempt and non-exempt employees across federal, state, and local governments.

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|                         PUMP ACT STATUTORY REQUIREMENTS MATRIX                                    |
|                                                                                                   |
|   +-------------------------------------------------------------------------------------------+   |
|   |  1. ELIGIBILITY DURATION: Guaranteed for up to 1 YEAR following the birth of the child.   |   |
|   |  2. BREAK FREQUENCY: "Reasonable break time" each time employee has need to express milk. |   |
|   |  3. PRIVATE SPACE STANDARDS:                                                              |   |
|   |     - Must be shielded from view and free from intrusion by co-workers and the public.   |   |
|   |     - EXPRESSLY PROHIBITED: A bathroom / restroom CANNOT be used as a lactation space.    |   |
|   |     - Must be functional (seating, flat surface, electrical outlet for pump equipment).   |   |
|   |  4. COMPENSATION RULES:                                                                   |
|   |     - Unpaid UNLESS: (a) employee is not completely relieved from duty during break; or   |   |
|   |       (b) break is taken concurrently with already-compensated paid rest breaks.          |   |
|   +-------------------------------------------------------------------------------------------+   |
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