04.11.2023 | Newsletters

An Eligible Employee with a Serious Health Condition May Use FMLA Leave on an Intermittent Basis

By Matthew H. Green

In a February 9, 2023 Opinion Letter, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) responded to a request from an employer as to whether the Family and Medical Leave Act (“FMLA”) entitles an employee to limit their workday to eight hours per day, due to a chronic serious health condition, where that employee normally worked more than eight hours per day. The employer suggested that it would be preferable to treat the work-hours restriction as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).

The DOL definitively confirmed that employees are well within their rights under the FMLA to utilize the available leave on an intermittent basis (rather than all at once) in order to work a reduced number of hours per day, as long as the employees do not exhaust their FMLA leave entitlement.

Under FMLA, an employee may take up to 12 workweeks of unpaid job-protected leave in a 12-month period for qualifying family and medical reasons, including “a serious health condition that makes the employee unable to perform the functions of the position of such employee.”

In its Opinion Letter, the DOL made clear that the FMLA entitles an employee up to 12 “workweeks” of leave, not just 40 hours a week for 12 weeks. If the employee regularly works more than 40 hours a week, then that employee would be entitled to FMLA leave based on their actual hours worked.

Additionally, the DOL clarified that the protections granted under the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke protections under both laws simultaneously. Employees who have exhausted their FMLA leave may have additional rights under the ADA or other laws, and an employer should verify the applicability of all leave requests before issuing a denial.

Related practice team: Labor and Employment

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