On February 9, 2023, the U.S. Department of Labor (DOL) issued an opinion letter addressing the issue of whether the Family and Medical Leave Act (FMLA) entitles an employee to limit their workday to 8 hours a day for an indefinite period of time because of a chronic serious health condition, where that employee normally works more than 8 hours a day. The DOL explained that if an employee would normally be required to work more than 8 hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee's FMLA leave entitlement. This means that if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.
The DOL also reminded employers that the leave provisions of the FMLA are distinct from the reasonable accommodation obligations of employers covered by the ADA, and that leave provided as an accommodation under the ADA may also be FMLA-protected leave.
Finally, the DOL cautioned employers against automatically granting all employees only 480 hours of FMLA leave per year (12 weeks x 40 hours). The FMLA provides an employee up to 12 work weeks of leave per year. If an employee is scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA leave per 12-month period. For example, an employee who normally works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period.
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