The Department of Labor’s Wage and Hour Division (the “WHD”) recently issued a new opinion letter on February 9, 2023 – the first opinion letter issued that addresses a question related to the FMLA since 2020. This opinion letter addresses the question of whether an eligible employee with a serious health condition that requires limited hours may use Family and Medical Leave Act (“FMLA”) leave to work “a reduced number of hours per day (or week) for an indefinite period of time” as long as the employee does not exhaust their FMLA leave entitlement.
Background
The FMLA entitles an eligible employee to take up to 12 workweeks of leave in a 12-month period for, among other qualifying reasons, a serious health condition that makes the employee unable to perform the functions of the employee’s position. Under the FMLA, an employee with a serious health condition can take continuous leave, or the employee can take leave on intermittent or reduced schedule when it is medically necessary due to the employee’s serious health condition. Employees using intermittent or reduced schedule can use their FMLA entitlement in the smallest increment of time the employer allows for the use of other forms of leave, provided the increment is no greater than an hour.
The question that this letter addresses, and that many employers routinely face, is whether an employer is obligated to permit an employee to use FMLA leave to limit the employee’s workday. The specific example raised in the opinion letter is whether the FMLA “entitles an employee to limit their workday to eight hours a day for an indefinite period of time because of a chronic serious health condition, where that employee normally works in excess of eight hours a day.”
Decision
In responding to the question posed by the inquirer, the WHD stated that:
[I]f an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.
Notably, however, the WHD distinguishes voluntary overtime hours from hours that an employee is required to work. Voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.
The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave. And importantly, if the employee never exhausts their FMLA leave, the WHD specifically stated that the employee “may work the reduced schedule indefinitely.”
The Interplay Between FMLA and ADA
The inquirer had suggested that an employee’s need to limit their workday to an eight hour day may be better suited as a reasonable accommodation under the Americans with Disabilities Act (“ADA”). However, the WHD clarified that leave provisions of the FMLA are wholly distinct from the reasonable accommodation obligations of employers covered under the ADA. While the ADA requires reasonable accommodations, absent an undue hardship, the FMLA is a leave law that requires employers to provide leave to eligible employees with health benefits intact throughout the entire period. As the WHD explained:
[T]he requirements and protections of the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke the protections of both laws simultaneously. Nothing in the ADA modifies or limits the protections of the FMLA; nor does the FMLA modify or limit the protections of the ADA.
As such, as a practical matter, employers should review all requests for accommodation and requests for leave carefully to ensure that they are appropriately identifying which laws may apply – the FMLA, the ADA, or another state, federal, or local law – and what those laws permit and require. Further, employees who have exhausted their FMLA leave may still have additional rights under the ADA or other state or local laws, regulations, and ordinances.
Calculation of Use of FMLA Leave
In this Opinion Letter, the WHD also addressed a method some employers use to calculate use of FMLA. Some employers may find it is easier to track FMLA use in hours rather than weeks. For example, for a full-time employee, some employers may prefer to calculate that the employee is entitled to 480 hours of FMLA per 12-month period (40 hours per week x 12 weeks). However, the WHD noted that FMLA provides that an employee is entitled to 12 workweeks of leave per year. Therefore, if an employee is regularly scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA leave per 12-month period. The FMLA regulations provide greater detail on how to address how to calculate and track use of intermittent or reduced schedule FMLA leave.
Practical Takeaways
This WHD opinion letter serves as a reminder that employers should identify all of the laws, regulations and ordinances applicable to their employees. As the letter stated, nothing in the ADA modifies or limits the protections of the FMLA; nor does the FMLA modify or limit the protections of the ADA. If an eligible employee who has not exhausted their FMLA leave entitlement requests leave, that request should be viewed as a request for FMLA-protected leave – even if the request is for intermittent or reduced schedule leave on an indefinite basis and even if the employee may realistically never exhaust their FMLA entitlement.
To the extent state or local laws, regulations and ordinances apply, it is important that employers are aware and ensuring compliance with each.
Further, employers must ensure that they are providing employees with 12 workweeks of leave per 12-month period.
If you have questions about this opinion letter, please contact:
- Mary Kate Liffrig at (720) 282-2033 or mliffrig@hallrender.com; or
- Your primary Hall Render contact.
Special thanks to law clerk Liliann Stoll for her assistance with this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
