The Family and Medical Leave Act (FMLA) is a federal law that authorizes employees to take an unpaid leave of up to 12 weeks if certain conditions are met. What many employers and employees may not know is that this leave doesn’t have to be taken all at once. It can occur under a reduced schedule.
A recent Opinion Letter (FMLA2023-1-A, 2/9/23) issued by the U.S. Department of Labor (DOL) gives employees even more flexibility. Indeed, they can elect to take the leave intermittently over a long period of time, even indefinitely, in increments as little as one hour at a time!
ABCs of the FMLA
Generally, a “covered employer” is obligated to comply with the provisions of the FMLA. This includes private sector employers with 50 or more workers in 20 or more weeks in the current or preceding year as well as joint employers and successors to covered employers. The same rules may also apply to public employers, such as federal agencies.
Under the FMLA, an eligible employee may be entitled to receive up to 12 workweeks of leave during a 12-month period for a qualifying reason. For these purposes, an eligible worker is one who meets all the following requirements. The employee:
- Works for a covered employer,
- Has worked for the employer for at least 12 months,
- Has worked at least 1,250 hours of service for the employer during the 12 months prior to the leave, and
- Works at a location where the employer has at least 50 employees within 75 miles.
Note: Any time the employee previously worked for the same employer — including seasonal work (for example, during the holiday season) — counts toward the 12-month rule.
What are the qualifying conditions? An eligible employee may take a leave of up to 12 weeks in a 12-month period for any one of the following reasons:
- A serious health condition that renders the employee unable to perform the essential functions of his or her job,
- The birth of a baby or placement of a child for adoption or foster care,
- The need to care for a spouse, child or parent who has a serious health condition, or
- Any qualifying exigency related to a spouse, child or parent who’s a military member and who’s on, or is called to, active-duty status. Note: Other special rules apply to military personnel.
How the FMLA and ADA interact
A related federal law — the Americans with Disabilities Act (ADA) — prohibits employers from discriminating against a qualified employee based on disability. If an employee is a disabled individual, the employer must make reasonable accommodations for him or her, barring undue hardship.
Although the legal definitions of terms under the FMLA and the ADA don’t exactly align, a leave provided as an accommodation under the ADA may also be protected by the FMLA. The FMLA regulations make it clear that employees maintain their rights under both the FMLA and the ADA. It’s not one or the other.
The new Opinion Letter issued by the DOL addresses the interaction between the FMLA and ADA when an employee’s health condition forces him or her to work a reduced schedule for an indefinite period.
For example, let’s say an employee is required by his employer to regularly work 45 hours per week (nine hours a day instead of the usual eight) but can only work 40 hours a week due to a chronic health condition. After a thorough analysis, the employer concludes that it can’t accommodate the employee’s request to have a modified 40-hour workweek because it would create an undue hardship on the business, according to the ADA.
But that’s not the end of the story. Under the FMLA, the employer must perform a separate analysis to determine if the employee is entitled to an unpaid leave. This is the crux of the matter that the Opinion Letter sought to address.
As previously stated, the FMLA entitles eligible employees to take up to 12 weeks of leave in a 12-month period if a serious health condition exists that makes the employee unable to perform the functions of the job. There’s no requirement that leave must be used in large blocks of time. In certain circumstances an employee may use intermittent or reduced scheduled leave.
In fact, employees using an intermittent or reduced schedule leave may use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave — as little as one hour at a time. Thus, in the example above, the employee may use intermittent FMLA leave to reduce his workweek from 45 hours to 40 hours if he otherwise qualifies.
The FMLA calculation of a leave is based on the employer’s regular work schedule rather than the typical 40-hour workweek often used by employers. Therefore, an employee’s 12-week leave in the example is calculated as a total of 540 hours (12 weeks x 45 hours that can be used over a 12-month period).
In the example, the eligible employee may be permitted to limit his workday to eight hours under FMLA. The remaining hours of his workday would be deducted from his allowable FMLA time. The employee may continue to use his FMLA time for as long as he remains eligible. Accordingly, if the employee never exhausts his FMLA leave entitlement, a reduced schedule could be continued on an indefinite basis.
In the Opinion Letter, the DOL emphasizes that this result wouldn’t conflict with the ADA requirements. The two laws can be implemented simultaneously. Employers are advised to comply with both laws in situations involving leaves for severe medical conditions.
Final Thoughts
Chances are, you have some questions about implementing the FMLA in specific situations that arise in your workplace. Don’t hesitate to contact your professional advisors for assistance.
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