DOL Opinion Letter Addresses FMLA Leave for Reduced Hour Workdays

On February 9, 2023, the DOL released an opinion letter regarding whether the FMLA entitles an employee to reduce their workday hours indefinitely due to a chronic serious health condition. The letter also explains that FMLA leave is in addition to and distinct from employee protections provided under other laws, including the Americans with Disabilities Act (ADA).

A DOL opinion letter provides a fact-specific response to an inquiring employer’s questions. Although limited in scope to the issues posed, an opinion letter can help to clarify the requirements to comply with a particular law, such as the FMLA.

Here, the requesting employer was having difficulty satisfying the 24-hour coverage needs of a department because multiple employees presented medical certifications for taking FMLA leave. The employees were regularly scheduled to work more than eight hours per day and sought to take FMLA leave for the scheduled daily hours exceeding eight. Accordingly, the employer inquired whether employees may use FMLA leave to limit their work schedule indefinitely due to a chronic serious health condition.

The employer also questioned whether ADA protections might be more appropriate than FMLA leave to address the employees’ schedule limitations. The ADA prohibits employers from discriminating against an employee based on disability regarding employment terms and conditions. If an employee is disabled under the ADA, the employer is required to make reasonable accommodations, which could include a flexible work schedule, barring undue hardship.

In the opinion letter, the DOL explains that the FMLA entitles each eligible employee of a covered employer to take up to 12 workweeks of job-protected leave with group health coverage maintained in a 12-month period due to a serious health condition. The letter notes that 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.

Additionally, employers must permit employees to take intermittent or reduced schedule FMLA leave when medically necessary, including when employees are unable to work required overtime hours. The letter clarifies that if 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. An employee may continue to use FMLA leave for an indefinite period if they continue to be eligible, have a qualifying reason and have not exhausted their FMLA entitlement.

The letter also emphasizes that FMLA protections do not diminish an employee’s rights under other laws. In the case of an employee who needs leave for a serious health condition under the FMLA and has a disability under the ADA, requirements from both laws must be observed and applied in a manner that assures the most beneficial rights and protections to the employee. Thus, an employee who has exhausted their FMLA leave and is no longer entitled under the FMLA to work a reduced schedule may still have additional rights under the ADA.

Employers may find the opinion letter helpful in administering FMLA leave, particularly as applied to a reduced work schedule and understanding how the FMLA interacts with other laws.

DOL Opinion Letter FMLA 2023-1-A »