Vigilant Blog

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Feb 16, 2023

DOL addresses indefinite intermittent FMLA leave and remote work

DisabilityLeave Laws 

The U.S. Department of Labor (DOL) recently addressed two important issues under the federal Family and Medical Leave Act (FMLA), approving indefinite intermittent leave due to a serious health condition and clarifying the work location of remote workers for FMLA purposes.

Indefinite intermittent leave: The DOL issued an opinion letter stating that the FMLA entitles an employee to limit their workday indefinitely due to their own serious health condition, even if they’re normally required to work more hours per day. The employer who sought the DOL opinion required certain employees to regularly work shifts longer than 8 hours to meet 24-hour operational needs. Several employees made requests under the FMLA to limit their shifts to 8 hours per day. The DOL said that an employee who is eligible and qualified for medical leave due to their own serious health condition may use FMLA leave to work a reduced schedule for an indefinite period, as long as they don’t exhaust their FMLA entitlement. Accordingly, if an employee normally is scheduled for 10-hour shifts but can only work 8 hours because of an FMLA-qualifying reason, they can use FMLA leave for the remaining 2 hours of each shift for as long as medically necessary. Under this schedule, it’s unlikely the employee would ever come close to using up their allotment of 12 workweeks of FMLA leave in a 12-month period. For example, if an employee works only 40 hours out of a scheduled 50 hours in a week and takes FMLA leave for the remaining 10 hours, they’ll use only one-fifth of a workweek of FMLA leave each week. Add that up over a 12-month period, and they would use a grand total of only 10.4 workweeks of FMLA leave over a 52-week period.

The employer requesting the opinion letter had expressed hope that it could address the employee’s inability to work all scheduled hours under the reasonable accommodation process of the Americans with Disabilities Act (ADA). An ADA assessment could potentially result in a finding that the employee wasn’t performing the essential functions of the job and that indefinite intermittent leave would be an undue hardship to the company. The DOL dashed those hopes, stating that although FMLA leave may qualify as a reasonable accommodation under the ADA, an employee’s right to FMLA leave is separate from and in addition to the employee’s rights under the ADA.

Work location of remote workers: An employee is eligible for FMLA leave if they: (1) work for a covered employer; (2) worked 1,250 hours during the 12-month period preceding leave; (3) have been employed for at least 12 months (need not be consecutive); and (4) are employed at a worksite where 50 or more employees are employed within 75 miles. (See the FMLA regulations at 29 CFR 825.11.) The DOL recently clarified that employees who work remotely don’t necessarily lose FMLA protection based on their work location. The DOL says that for FMLA eligibility purposes, the employee’s personal residence is not a worksite, and therefore isn’t the place to measure whether there are 50 employees within 75 miles. Instead, when an employee works from home or otherwise telecommutes, their worksite for FMLA eligibility purposes is the office to which they report or from which their work assignments are made. (See Field Assistance Bulletin No. 2023-1 , February 9, 2023.)
Tips: If an employee is eligible for FMLA, you must identify how much leave the employee is entitled to, how much has been used, and how much remains in the “bank.” Remember that an employee is entitled to 12 workweeks of leave per year under the FMLA. The amount of leave available is based on the number of hours the employee works in a normal workweek – even if it exceeds 40 hours. Therefore, if an employee normally works 50 hours per week, they would be entitled to 600 hours of FMLA leave in a 12-month period. The safest way to calculate FMLA leave is to use fractions of the employee’s scheduled workweek, rather than number of hours. For more information, see Vigilant’s Legal Guides, FMLA: Eligibility Requirements and FMLA: Calculation of a Workweek for Intermittent Leave. If you need assistance with a specific analysis, contact your Vigilant Law Group employment attorney.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.