Employees may use Family and Medical Leave Act leave to reduce their work hours indefinitely, the U.S. Department of Labor said Thursday in an opinion letter.
The agency’s Wage and Hour Division issued the letter in response to an employer’s question: Does the FMLA entitle an employee to limit their workday to eight hours a day for an indefinite period because of a chronic serious health condition, where that employee normally works in excess of eight hours a day?
The employer said it generally required shifts longer than eight hours and expressed concern that multiple workers had presented medical certifications for FMLA leave after working an eight-hour day, making it difficult to satisfy the employer’s 24-hour coverage requirements, Jessica Looman, principal deputy administrator for WHD wrote.
But the FMLA entitles covered workers to such leave, Looman said. “[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.” And if an employee never exhausts their FMLA allotment, “they may work the reduced schedule indefinitely,” she opined.
Looman also cautioned the employer that parts of its letter raised some concerns. First, the employer suggested the employees’ requests may be “better suited” as Americans with Disabilities Act accommodations. She cautioned that the ADA and FMLA protections are not mutually exclusive; workers who are covered by both may be entitled to both accommodations and FMLA leave. Notably, she added, an employee who exhausts their FMLA leave may be entitled to additional time off as a disability accommodation.
Additionally, the employer referred to workers having 480 hours of FMLA, and Looman cautioned that the law provides 12 workweeks of leave per year; workers’ entitlements are based on their own regular schedule. “For example,” she wrote, “an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.”
WHD’s response represents its first opinion letter made public in years. Despite general agreement that there are flaws in the process, employers and their attorneys liked the option to receive specific DOL insight as the letters could amount to a defense for the requesting party. But the Obama administration scrapped opinion letters, instead favoring broadly applicable “administrator’s interpretations.” Opinion letters were revived under the Trump administration but last week’s letter was the first WHD made public under President Joe Biden.
