Did You Know?

On February 9, 2023, the U.S. Department of Labor, Wage and Hour Division issued an Opinion Letter on Family and Medical Leave Act (FMLA) Leave. The letter responds to an employer’s request for an opinion concerning whether FMLA entitles an employee to limit their workday to eight hours a day for an indefinite period of time because of a chronic serious health condition, where that employee normally works more than eight hours a day. The employer stated that it is standard for employees to work and be scheduled for a workday that is more than eight hours a day because of 24-hour coverage needs in that department. The employer felt that this type of work restriction was “better suited” as a reasonable accommodation under the Americans with Disabilities Act (ADA).

The opinion letter advises that an 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 as long as the employee does not exhaust their FMLA leave entitlement and they continue to have a qualifying reason for leave. This means that if an employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.

The letter also reiterates that the amount of leave an employee is entitled to is based on the employee’s workweek. Therefore, 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. For example, an employee entitled to work 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.

Finally, the letter states that the requirements and protections of the FMLA are separate and distinct from those of the ADA, meaning that an employee can invoke the protections of both laws simultaneously. For example, if an employee has exhausted their FMLA leave and needs to work a reduced schedule, that employee may have additional rights under the ADA.

Note:

This opinion letter shows that a school’s obligation to provide FMLA leave can continue indefinitely and that a school has a simultaneous duty to reasonably accommodate an employee under the ADA.