The FMLA’s Birthday Gifts: Two Publications from the DOL

In early 2023, the Wage and Hour Division (WHD) of the federal Department of Labor (DOL) was busy publishing guidance related to the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA). Both issued on February 9, 2023, only a few days after the FMLA’s 30th birthday, the Field Assistance Bulletin and the Opinion Letter FMLA2023-1-A provide helpful information for employers navigating the FLSA, the FMLA, and their tricky nuances. Below is a brief summary of each publication.  

DOL Field Assistance Bulletin No. 2023-1

The Field Assistance Bulletin (FAB) No. 2023-1, entitled “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act,” provides guidance and clarification regarding remote work (“telework”), FLSA application, and FMLA eligibility. The FAB explains how to count hours worked for telework employees, how to apply FLSA protections to telework employees (including reasonable break time for nursing employees), and how to apply eligibility rules under the FMLA to teleworking employees or when employees work away from an employer’s facility. 

Specific to the FMLA, the FAB clarifies that employees who telework are “eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job.” When determining the hours-of-service requirement for FMLA eligibility, employers should apply the FLSA compensable hours of work principles.  It is noted that the employee’s personal residence is not a worksite, but that the office to which the employee reports, or from which their assignments are made, serves as the determining factor when assessing the teleworking employee’s worksite.   

For additional details, you can read the FAB in its entirety here.  

FMLA Opinion Letter

In the WHD’s Opinion Letter FMLA2023-1-A, the Department clarifies how the FMLA can reduce a workday or workweek for employees with chronic serious health conditions. The Opinion Letter gets into the weeds regarding general legal principles and application, but explains that an eligible employee, who normally works in excess of 8 hours per day but is unable to do so because of an FMLA-qualifying reason, may use FMLA leave for the remaining hours of each shift in excess of 8 hours, resulting in a reduced work schedule. These hours, which the employee would have otherwise worked, are designated as FMLA and are subtracted from the employee’s FMLA leave entitlement, so long as FMLA time is still available and has not yet exhausted. The letter concludes that “if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.” This approach can apply to the reduction of any standard schedule, not simply 8-hour days. 

The Opinion Letter also serves as a reminder that “the requirements and protections of the FMLA are separate and distinct from those of the ADA,” and that “an employee may be entitled to the protections of both laws simultaneously.” Simply put, employers need to engage in and manage the FMLA analysis and the ADA reasonable accommodation analysis separately and simultaneously.  

Further, the Letter reminds employers that the FMLA entitles employees to 12 workweeks of leave per year. The calculation of hours available would depend on the employee’s regularly-scheduled workweek. If an employee is regularly scheduled to work 40 hours per week, they are entitled to 480 hours of FMLA leave per 12-month period. If, however, 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. 

For additional details and analysis, you can read the Opinion Letter in its entirety here.  

Author Biography 
Katarina Niparko, Esq., is a Compliance Counsel for Alight. Prior to joining the company, she worked for top nation-wide law firms, representing clients with all areas of labor and employment law, including litigating employment discrimination claims and preparing employment policies, handbooks, and HR training. Ms. Niparko graduated Cum Laude, Order of the Coif, and Order of the Barristers from Pepperdine University Caruso School of Law in 2018 and is admitted to the Colorado Bar.