On February 9, 2023, the Wage and Hour Division of the U.S. Department of Labor (WHD) issued Opinion Letter FMLA2023-1-A clarifying an employee’s right to use leave under the Family and Medical Leave Act (FMLA) to reduce the employee’s work schedule. The right is guaranteed for eligible employees, irrespective of the availability of reasonable accommodations under the Americans with Disabilities Act (ADA). The opinion highlights FMLA regulations that routinely create compliance issues for employers.
The WHD utilizes opinion letters as opportunities to provide the public with guidance on the federal agency’s enforcement of certain federal labor laws. Generally, employers and workers can present issues to the WHD and request a written opinion detailing the law’s application to specific issues. The agency will then publish an official opinion applying only those laws the agency is responsible for enforcing to the specific facts stated in the request for the opinion letter. To no surprise, the WHD does not issue opinion letters on matters a requestor1 is presently litigating or for which a requestor is being investigated.
Opinion Letter FMLA2023-1-A is the WHD’s answer to the question: Can employees with a chronic serious health condition use FMLA leave to reduce their work schedule for an indefinite period of time, when the reduced schedules present staffing challenges for the employer. The requestor further questioned whether these reduced schedule requests could alternatively be treated as requests for reasonable accommodations under the ADA.
The WHD concluded: “[A]n eligible employee with a serious health condition that necessitates limited hours may use 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.”2 The opinion reminds employers that “serious health condition” under the FMLA and “disability” under the ADA are not synonymous.3 Each law provides employees with certain rights and protections. Employers must ensure compliance with both laws. To accomplish this, employers should review leave requests and work restriction notices carefully to determine the employer’s obligations (if any) under the FMLA, ADA, and other laws (e.g. workers’ compensation laws).
Under the FMLA, eligible employees may take up to 12 workweeks of unpaid leave for a serious health condition in a 12-month period.4 A serious health condition under the FMLA is “an illness, injury, impairment, or physical or mental condition” involving inpatient care or continuing treatment by a health care provider.5 Employers may require employees to provide a medical certification completed by a health care provider that verifies the serious health condition and certifies the medical necessity for FMLA leave. “Once an eligible employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave.”6 Put another way, the employer cannot select to treat the leave request as solely a reasonable accommodation request under the ADA and disregard the employee’s rights under the FMLA. Employers must designate leave as protected FMLA leave and provide the eligible employee with notice of such designation within five (5) business days of acquiring sufficient information to determine the leave is for an FMLA-qualifying reason.7
FMLA leave may be taken intermittently or on a reduced schedule under certain circumstances.8 Use of FMLA leave on an intermittent basis or reduced schedule is calculated based on actual leave taken. Only hours the employee would regularly be required to work but is unable to work due to an FMLA-qualifying reason are counted as FMLA leave taken. An employee’s hourly equivalent of FMLA leave entitlement must be determined based on the hours employee is regularly scheduled to work during a workweek when leave is taken.9
This is a great reminder for employers requiring employees to work more than 40 hours in a workweek. Consider the following example: Employee is regularly scheduled to work 50-hour weeks, 10-hour days. Employee is eligible for up to 600 hours of FMLA leave in a 12-month period (50 hours x 12 workweeks). Due to a serious medical condition, Employee takes FMLA leave reducing her schedule to 8-hour days. Employee thus takes 2 hours FMLA leave each workday on the reduced schedule.
The WHD concluded Opinion Letter FMLA2019-1-A with a reminder that “employee[s] may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave. . . . [I]f the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.”10 When an employee exhausts FMLA leave, employers should consult an attorney to determine whether the employee has additional rights under the ADA, workers’ compensation law, or other applicable laws.
1 For purposes of this article, “requestor” shall mean the individual submitting a requesting an opinion letter from the WHD.
2 WHD Opinion Letter FMLA2023-1-A at 1.
3 The Equal Employment Opportunity Commission is the federal agency responsible for enforcing the ADA, not the WHD.
4 Employer sets the 12-month period by policy pursuant to 29 U.S.C. § 825.200(b).
5 29 U.S.C. § 2611(11).
6 WHD Opinion Letter FMLA2019-1-A at 2.
7 29 C.F.R. § 825.300(d)(1) (requiring one designation notice per FMLA-qualifying reason in a 12-month period).
8 29 C.F.R. §§ 825.120(b), 825.202, 825.203.
9 Other calculations of leave for employees with varying work schedules are set forth in 29 C.F.R. § 825.205(b). The employee’s average weekly schedule over the 12 months immediately preceding leave, including scheduled hours the employee took leave, shall be used to determine
10 WHD Opinion Letter FMLA2023-1-A at 3-4.