For employees on reduced schedule FMLA leave, 12 workweeks will get converted into days, hours or minutes. But that can trip up employers, new guidance shows.
The Department of Labor (DOL) just released an opinion letter focused on reduced schedule leave. It’s worth noting this is the first opinion letter employers have seen on the FMLA since 2020.
FMLA 2023-1-A addresses one employer’s situation involving:
- how intermittent or reduced schedule FMLA leave should be calculated, and
- whether employees’ schedule limitations would be “better suited” for reasonable accommodation under the Americans with Disabilities Act (ADA).
The employer that requested the opinion letter had workers on the clock 24 hours a day, so to make scheduling run smoothly, shifts typically ran longer than eight hours.
But for several employees, an eight-hour shift was all they could handle. They’d produced medical certification of serious health conditions, explaining that after completing an eight-hour shift, they’d need to take reduced schedule FMLA leave for the remainder of the shift.
The employer approved the FMLA leave, but the arrangement posed some challenges. So, the company asked the DOL for its assessment.
Insights on FMLA leave
The opinion letter, released February 9, 2023, points out that the employer incorrectly assumed an employee’s annual 12 workweeks of FMLA leave would convert to 480 hours when calculating intermittent or reduced schedule leave.
Indeed, 480 hours would be accurate for someone who’s regularly scheduled to work 40 hours per week. But what if someone works more or less than that? Here are some examples of how workweeks would be converted into hours:
- 12 weeks X 37.5 hours per week = 450 hours
- 12 weeks X 40 hours per week = 480 hours
- 12 weeks X 50 hours per week = 600 hours.
For employees using FMLA leave in small increments, it’s possible that their FMLA leave will continue year after year – “indefinitely,” as the DOL puts it. Alternatively, they might exhaust their available leave in the course of a year. Then they’d have to wait until the following year to request leave again and, at that time, the employer would consider their FMLA eligibility.
As for which law – the FMLA or the ADA – better applied to the employees’ needs, the DOL explains in FMLA 2023-1-A that the two laws don’t cancel each other out. Rather, these laws along with all other applicable federal and state laws should be taken into consideration to determine what best benefits the employee.
In fact, someone may be covered by both the FMLA and the ADA simultaneously. That person would maintain his or her rights under both laws, the DOL makes clear.
Here’s how all this could play out in a workplace:
Let’s say someone with a disability is seeking the reasonable accommodation of switching to part-time work. That person would lose his or her employer-provided group health insurance coverage, in a situation where only full-time employees are eligible for coverage. Perhaps that employee is also requesting FMLA leave due to a serious health condition. For the duration of the FMLA leave, that person would maintain the employer-provided group health insurance coverage.
How the FLSA factors in
Under the FMLA, leave doesn’t need to be paid, so intermittent or reduced schedule leave is fairly straightforward when you’re dealing with nonexempt, hourly employees who don’t have any paid time off available.
But what about someone who’s been classified as exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA)? According to FLSA regulations, that person must be paid on a salary basis – and that means you can’t make deductions for partial-day absences. But there’s a caveat to that: In the case of an exempt employee who’s taking intermittent or reduced schedule FMLA leave, partial day absences are allowed.
