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.