BOP NEWSLETTER • December 2023

Q: May I recoup an inadvertent overpayment of overtime pay in one pay period by not paying the employee for overtime worked in the next pay period?

A: No. If you mistakenly pay overtime to a nonexempt employee in a pay period in which the employee did not work overtime, you may not recoup the overpayment in the following pay period by not paying the employee for overtime worked in that following pay period. The employee must be paid for every hour worked in that following pay period. Recouping overpayment of overtime must be carefully managed according to federal and state laws.

Q: Is the flu considered a serious health condition under the Family and Medical Leave Act (FMLA)?

A: No. Generally, unless complications arise, routine conditions such as the common cold, the flu, earaches, upset stomach, minor ulcers, headaches other than migraines, and routine dental or orthodontia problems are not considered serious health conditions and therefore will not be a qualifying reason for an employee to take FMLA leave.

Deciding whether complications arise is a tricky area, however. For example, if an employee is hospitalized for the flu or needs continued medical care to treat the flu, they would likely be eligible for FMLA leave. Ask the employee for a medical certification and then determine whether to approve or deny FMLA leave.