In a troubling opinion letter for employers, the Wage and Hour Division of the U.S. Department of Labor has asserted that employees may use leave under the Family and Medical Leave Act to reduce their work hours for an indefinite period, as long as they do not exhaust their FMLA leave. It also offers some insight into the interaction of the FMLA with the Americans with Disabilities Act.
Background. Opinion letters respond to an FMLA inquiry to the DOL’s WHD from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters for guidance. This opinion letter describes a 24-hour coverage requirement, where employees are scheduled for a workday lasting longer than 8 hours. However, multiple employees provided medical certifications for FMLA leave after 8 hours of work, resulting in a limited work schedule.
As the WHD notes, the FMLA provides eligible employees of covered employers (generally, those with 50 or more employees) with up to 12 workweeks of leave in a 12-month period due to the employee’s serious health condition that makes the employee unable to perform their job functions. Such serious health conditions can include chronic conditions. A health care provider must certify the existence of the condition, as well as the leave medically required, which may include intermittent or reduced schedule leave. The FMLA regulations provide that employees may use intermittent or reduced schedule FMLA leave when they are unable to work required overtime hours because of an FMLA-qualifying reason.
The WHD’s Opinion and Its Practical Effect. In the opinion letter, the WHD asserts that “[a]n eligible employee with a serious health condition that necessitates limited hours may use FMLA leave to work a reduced number of hours per day (or week) for an indefinite period of time as long as the employee does not exhaust their FMLA leave entitlement.” And even more specifically, “if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.”
As many employers know, some employees use just enough intermittent or reduced schedule leave to ensure that they never run out of leave. For example, a full-time employee scheduled to work 40 hours a week would be entitled to 480 hours (12 weeks x 40 hours) of FMLA leave in a 12-month period. If the employee took FMLA leave for 1 day a week, they would use only 416 hours of FMLA in a 12-month period. As a practical matter, they could establish a permanent 32-hour schedule using FMLA leave, while still retaining full-time status and benefits.
The WHD also takes the opportunity to remind employers that the employee’s entitlement is to 12 workweeks of leave – and the workweek may differ from employee to employee. Thus, employers should not assume that all full-time employees will get 480 hours of FMLA leave. For example, if an employee regularly works 50 hours a week, they would be entitled to 600 hours of FMLA leave (12 weeks x 50 hours) in the 12-month period.
What About the ADA? The opinion letter notes that “‘disability’ under the ADA and ‘serious health condition’ under the FMLA are different concepts and must be analyzed separately.” It goes on to note, however, that “leave provided as an accommodation under the ADA may also be FMLA-protected leave.”
Employees are entitled to protections under both laws, whichever is greater. One specific example provided in the opinion letter is health insurance coverage – under the ADA, a reasonable accommodation might be a transfer to a part-time job with no health benefits, but under the FMLA, the employee would be able to use FMLA leave to reduce their work schedule until they use the equivalent of 12 workweeks of leave while still maintaining their group health benefits. (Now, if the reduced schedule FMLA leave is on a regular schedule, the FMLA would allow the employer to transfer the employee to another position that better accommodates the scheduled leave – but at the same salary and benefits. Note that this transfer option, however, is not available for unscheduled intermittent leave.)
Another area in which the FMLA trumps the ADA is with regard to the impact of the leave. While the ADA provides that a reasonable accommodation cannot impose an undue hardship on the employer, the FMLA ignores the impact of protected leave on the employer. Thus an employee is entitled to take FMLA leave – apparently even on an indefinite, intermittent or reduced schedule basis – even if such leave imposes an undue hardship on the employer.
And, of course, if an employee exhausts their FMLA leave, they may still be entitled to reasonable accommodations under the ADA – which can include additional leave, to the extent such leave does not impose an undue hardship. Thus, employers must not automatically terminate employees at the end of FMLA leave, but must be careful to engage in the ADA’s required interactive process to evaluate potential accommodations prior to any termination decision.