Christine Sensenig

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The DOL’s February 9, 2023 Opinion Letter on “Never Ending” FMLA

Complying with the Family and Medical Leave Act (“FMLA”) is notoriously treacherous, with opportunities to accidentally “interfere” with your employees’ leave – and thus invite equally treacherous litigation – at every turn.  Frankly, if you receive a request for FMLA-leave, the smart move is to consult an attorney ASAP, even if you’re 99% certain that the employee is (or isn’t!) entitled to leave, because the smallest deviation from the rigid requirements of the FMLA can give rise to thousands of dollars of liability, not to mention attorneys’ fees.

To prove it, today this blog will discuss U.S. Department of Labor (“DOL”) Opinion Letter FMLA2023-1-A, wherein an employer asked the DOL whether an employee could be entitled to an indefinite schedule reduction under the FMLA.  Shockingly, the DOL’s answer was simple and unequivocal: yes, indeed they can.  And what’s more, the DOL took it upon itself to add, as an afterthought, that there are circumstances where an employee’s FMLA leave entitlement might actually exceed the supposedly standard 480 hours per year.  As if the FMLA couldn’t get more complicated!

Before we dive head-first into the weeds here, let’s clear up a common misconception: the FMLA and the Americans With Disabilities Act (“ADA”) are completely separate laws, with completely separate requirements.  Per the DOL: “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. Nothing in the ADA modifies or limits the protections of the FMLA; nor does the FMLA modify or limit the protections of the ADA.” See 29 U.S.C. § 2651(a), 42 U.S.C. § 12201(b); see also 29 C.F.R. § 825.702(a).  Keep in mind that while this blog’s purpose is to discuss the FMLA, employees who are eligible for intermittent leave under the FMLA may also be entitled to reasonable accommodations under the ADA, and the provision of FMLA-leave in no way limits an employee’s eligibility for such accommodation, nor does a reasonable accommodation limit an employee’s eligibility for FMLA-leave.  Now, back to the FMLA…

First, a quick refresher: the FMLA entitles employees who have worked 12 consecutive months for an employer who “regularly” employs 50 or more employees to 12 “workweeks” of protected, unpaid leave.  So, if your payroll usually has less than 50 people on it, good news(!): you can breathe a sigh of relief and stop reading here.  For everyone else…

Let’s tackle indefinite schedule reductions.  Let’s say you have an employee who qualifies for FMLA-leave, who applies for and is granted a reduced schedule pursuant to their doctor’s orders.  For ease of math, let’s say that their doctor orders that this employee cannot work for more than 8 hours in any given day, and that the employee’s usual pre-FMLA schedule was for 9 hours per day, 5 days per week.  Thus, the employee is effectively taking 5 hours of FMLA-leave every week.  

Well, unfortunately the employee’s condition turns out to be chronic, and the employee’s doctor recommends that the employee never work in excess of 8 hours per day for the rest of their life.  What does that mean for the employer?  Well, according to the DOL’s 02/09/2023 Opinion Letter on the subject, it means that your employee can never be required to exceed 8 hours of work per day for the duration of their employment.  

“But how?!” you ask?  Isn’t the FMLA limited to 12 weeks?  Indeed!  But those 12 weeks need not be consecutive, hence our hypothetical employee’s reduced schedule – what we call “intermittent leave” –  as described above.  Further, those 12 weeks aren’t actually measured in “weeks” per se, they’re measured in hours.  Specifically, under the FMLA, “12 weeks” means “12 workweeks.” Per the DOL: 

“Therefore, if an employee is regularly scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA leave per 12-month period. WHD Opinion Letter FMLA2002-1, 2002 WL 34420905, at *1 (May 9, 2002); 73 Fed. Reg. at 67978. For example, an employee who ordinarily works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period. See 29 C.F.R. 825. 205(b)(1).”

But how does this lead to a legally required indefinite schedule reduction?  Well, let’s return to our hypothetical employee from above.  This employee is effectively claiming 5 hours of intermittent FMLA-leave per week.  That’s 260 hours a year.  Prior to taking FMLA-leave, this employee’s regular workweek was 45 hours per week, meaning this employee is entitled to 540 hours of FMLA-leave per year.  That means that this employee won’t actually use up all of their FMLA-leave in a year; and what happens on the anniversary of the employee’s first day of FMLA-leave?  The employee’s entitlement to FMLA-leave resets.  

The employee will have to renew their paperwork, but once they do, they become entitled to a fresh 12 weeks (in this case, 540 hours) of protected FMLA-leave.  Assuming their doctor hasn’t changed their mind and issues a fresh “8-hour maximum workday” recommendation, you must continue to accommodate this employee’s need for ongoing, intermittent FMLA-leave.  Indefinitely.  And rest assured, after this paperwork is complete, and all of employee’s proverbial ducks are situated neatly in a row, terminating this employee becomes expensive, if not impossible.  Hence our initial recommendation: the very second you know (or even suspect!) an employee is going to be entitled to FMLA-leave, you should seek counsel.  

The DOL’s Opinion Letter on indefinite FMLA-leave extends beyond the hypothetical we’ve contemplated here.  It could just as easily apply to an employee who needs to take 5 hours of physical therapy a week for the rest of their life, or an employee who cannot arrive at work before 10 a.m. indefinitely.  

“FMLA-interference” is a cause of action (read: lawsuit) which arises any time an employer is accused of “interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.” In practical terms, each of the following FMLA-interference claims have survived a Motion to Dismiss:

  • “You handed me the paperwork in the wrong order!”

  • “You handed me an expired form (even though the current version is literally the exact same form, word-for-word)!”

  • “You didn’t tell me I was qualified for FMLA-leave without me asking!”

  • “You took too long to respond to my request for FMLA-leave!”

  • “You made me feel guilty for asking for FMLA-leave!”

  • “I don’t qualify for FMLA-leave, but you didn’t know that for sure when you denied it!”

  • “I wanted to take my intermittent leave for physical therapy every Friday, but you said I had to take it on Mondays!”

Some of these are real examples we’ve dealt with personally, others are from caselaw, but each of them will end up costing you much more time and money than they’re worth.  When it comes to the FMLA, an ounce of prevention is worth a pound of cure.  As always, we’re here to help. 

Christine SensenigFMLA-Leave, FMLA, Family and Medical Leave Act