The Department of Labor (DOL) issued a public opinion letter on February 9, 2023, in response to an employer’s inquiry about an employee’s inability to work more than an eight-hour day due to a Family Medical Leave Act (FMLA) qualifying chronic serious health condition. In the letter, the DOL states that employees may be entitled to indefinite reduced schedules under the FMLA.
The Wage and Hour Division explains that an employee who is able to work an eight-hour day, but not more, would be entitled to work the number of hours they can and take intermittent FMLA leave for the remainder of the hours. Employers must permit employees to use intermittent leave necessary due to a serious health condition and cannot require them to take more FMLA leave than needed. This could result in an indefinite reduced hours schedule if the employee at hand did not exhaust FMLA leave by the time the FMLA accrual was renewed. When calculating the intermittent leave allotment, instead of a systemic application of 480 hours based on a 40-hour work week, the DOL reminds employers to use the actual hours an employee works on average each week.
Finally, the letter reminds employers that the Americans with Disabilities Act (ADA) operates in conjunction with the FMLA. The ADA would provide an avenue for accommodation for any request to work a reduced schedule, absent undue hardship on the employer. Suppose the reduced schedule leave interferes with the employee’s ability to perform the job successfully. In that situation, the employer must also consider the issue under an ADA undue hardship analysis, establishing tangible factors, before transferring an employee to an alternative position. Keep in mind that the ADA and FMLA are not mutually exclusive, and an employee has the right to invoke both protections simultaneously.
Notably, this is the first public opinion letter that the DOL’s Wage and Hour Division has published in years, presumably to offer guidance to all employers, not just the employer to whom the letter was directed. Employers should review the letter to better inform their approach to intermittent FMLA leave requests, ADA accommodation requests for reduced hour schedules and other incidences that invoke the protections of both federal laws.
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