Navigating Recent DOL Opinion Letter on FMLA and its Impact on the Employer

By Paul F. Millus

On February 9, 2023, the U.S. Department of Labor (DOL) issued an Opinion Letter on the question of whether an employee is entitled to limit their workday to 8 hours a day for an indefinite period of time because of a chronic health condition where that employee normally works an excess of 8 hours a day. The DOL concluded that an eligible employee with a health condition that necessitates limited hours may use FMLA work leave to work on a reduced schedule of hours per day (or week) for an indefinite period of time, as long as the employee does not exhaust their FMLA benefits.

The Opinion Letter addresses an employee’s use of “intermittent leave” under the FMLA which has become difficult to navigate over the years by employers. It is one thing for employees to obtain appropriate FMLA leave time to take off from work for an extended period of time - up to 12 weeks per year - where their position is all but protected during their leave. It is entirely another when an employer must work through intermittent leave periods which can impact the company’s productivity in a significant way.

Moreover, while the question posed to the DOL concerns employees who work more than eight hours a day, the DOL’s opinion can certainly be construed to apply the use of FMLA leave to limit work hours, whether they exceed 8 hours per day or not.

So, let’s say an employee who suffers from “long Covid” obtains a doctor’s note that working 5 days a week exacerbates that employee’s condition and that a 4 day work week is recommended, resulting in the employee using 8 hours per week of FMLA leave time. As the DOL makes it clear in its opinion, an employee working 40 hours per week is entitled to 480 hours of FMLA leave per year. In this example, such an employee seeking to work 4 days a week would only exhaust 416 FMLA leave hours over the 480 FMLA leave hours allotted per 12 month period.

One can see that such a situation could prove difficult. Finally, there are limits to an employer’s power to challenge the employee’s doctor’s opinion and a request for recertification of the ailment from the employee’s doctor , permitted under the FMLA, has its limits as well. However, there is hope. First, an employer should ensure that its FMLA policy is clear. Next, receiving proper advice form qualified counsel, an employer should be willing to take a stand if they believe abuses are occurring.