On February 9, 2023, the U.S. Department of Labor (DOL) issued an opinion letter stating that employees may use the Family and Medical Leave Act (FMLA) to reduce their work hours indefinitely. The DOL issued its letter in response to an employer asking whether an employee with a chronic health condition can use the FMLA to limit their workday to eight hours when they normally work more than that in a day. The DOL’s answer was “yes,” an employee may use FMLA for an indefinite period of time as long as they have not exhausted their 12-week entitlement and continue to have a qualifying reason for leave.
Background on FMLA and “Reduced Schedule Leave”
To be eligible for leave under the FMLA, an employee must have worked for a covered employer for at least 12 months, must have worked at least 1,250 hours during the 12 months before the first day of the requested leave, and must work at a location where the company employs 50 or more employees within 75 miles. A qualifying reason under the FMLA is defined as the birth or placement of a child with the employee, caring for a child, spouse or parent who has a serious health condition, or the employee’s own “serious health condition.”
Eligible employees have the right to take up to 12 workweeks of FMLA leave within 12 months. However, the 12-week entitlement does not have to be used all at once. Instead, employees may use FMLA leave in increments of time as small as a company’s payroll system can track. Thus, employees have used FMLA time to limit their days and/or hours of work to create a “reduced leave schedule.” The DOL’s recent opinion letter simply clarified that FMLA can be used for an indefinite period of time to create a reduced leave schedule. The DOL also provided guidance on determining the number of FMLA hours an employee is entitled to take for reduced schedule leave and how an employee’s use of reduced schedule leave also impacts their rights under the Americans with Disabilities Act (ADA).
When Is an Employee Entitled to Reduced Schedule Leave Indefinitely?
The question on many employers’ minds is, probably, “How can an employee be entitled to shortened hours indefinitely when FMLA provides a 12-week entitlement per year?” In its letter, the DOL explained that an employee may continue to use FMLA leave until the employee has exhausted their 12-week entitlement to leave. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely. Or, put another way, “[i]f the employee never uses as much as 12 workweeks of FMLA leave in a 12-month period, the employee would never exhaust his or her statutory entitlement to take FMLA leave.”
How Employers Should Calculate the Hours an Employee Is Entitled To
It is imperative for employers to know how to properly calculate how many hours of FMLA an employee can take off when implementing a reduced schedule leave. As noted above, an employee is entitled to 12 workweeks of leave per year under FMLA. In its letter, the DOL explained to properly convert 12 workweeks into hours, an employer must evaluate how many hours a particular employee is typically required to work in a given workweek. Thus, if an employee is regularly scheduled to work 40 hours per week, they are entitled to 480 hours of FMLA per 12-month period. Alternatively, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.
The Interplay Between FMLA Reduced Schedule Leave and a Request for Reduced Hours as a Reasonable Accommodation
In its February opinion letter, the DOL addressed the issue of whether a request for reduced hours under the FMLA might be “better suited” as ADA accommodations. The DOL cautioned that an individual who receives ADA accommodations is not precluded from also taking leave under the FMLA. Rather, the requirements and protections of the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke the protections of both laws simultaneously. Understanding this distinction is crucial because, just as an employer could be liable for interfering with an employee’s attempt to exercise an FMLA right, they could also be exposed to liability for interfering with an employee’s attempt to exercise their rights under the ADA.
Under the ADA, a qualified employee with a disability is entitled to “reasonable accommodations” that enable them to perform the essential functions of their job. Federal courts and the EEOC have long held that a reasonable accommodation may include a leave of absence or other time off from work, including a reduced leave schedule. Thus, even if an employee is not eligible for leave under the FMLA, or even if your company is not large enough to be covered by the FMLA, an employee may be entitled to a reduced leave schedule as a form of accommodation under the ADA. And as the DOL’s opinion letter makes clear, a reduced leave accommodation under the ADA may be available on an indefinite basis, including when an employee has exhausted their 12-week FMLA entitlement.
Reduced leave schedules and the interplay between the FMLA and ADA are highly complex and fraught with risk. If you have any questions about managing attendance and employees with medical conditions, please do not hesitate to contact the Cohen Seglias attorney with whom you ordinarily consult.
