On February 9, 2023, the U.S. Department of Labor issued Opinion Letter FMLA 2023-1-A relating to whether or not an employee could “limit their workday to eight hours a day for an indefinite period of time…” when the standard work schedule is typically more than eight hours a day.

In this instance, the DOL unsurprisingly and once again indicated that the employee could utilize all existing FMLA on an annualized basis to reduce their work schedule. Of note, the employer requesting the opinion letter had proposed that such a schedule change should be assessed under the ADA/ADAAA rather than subject to FMLA protections. This was due in part to concerns that “multiple employees have presented medical certifications for taking FMLA leave from work making it difficult to satisfy the 24-hour coverage needs of your department.”

In this instance, the employer was seeking advice on a truly practical question: how do I staff a department and keep my company running (frequently essential services) if everyone has a shortened workday? In assessing this question, the DOL reiterates its consistent position that “leave provisions of FMLA are wholly distinct from the reasonable accommodation applications of employers covered under the ADA.” 29 CFR §825.702(A).

The DOL provided no practical guidance on how an employer can balance multiple employees seeking intermittent leave on the same shift and gives no leeway in the use of a reasonable accommodation standard. FMLA remains absolute with very limited exceptions. This could be an instance where the employer would potentially transfer employees to an alternate but “commensurate job.” The difficulty remains for most employers that there is typically no commensurate job that can allow for this type of absenteeism.  

The Big Picture

Issues like this require careful management of FMLA, including follow-up and clear medical certification. Before granting FMLA, an employer may want a second opinion from an attorney, particularly if all employees seeking a truncated schedule are obtaining documents from the same medical provider. If problematic enough, it may require reestablishing certain conditions of employment like scheduling.