Policy & Advocacy

March 02, 2023

The Department of Labor’s (DOL) Wage and Hour Division (WHD) issued two new documents interpreting the requirements of the Family and Medical Leave Act (FMLA) and how the requirements interact with other Federal labor and employment laws. The WHD also revised their general fact sheet on the FMLA with clarifying information and additional examples.

Field Assistance Bulletin

On February 9, 2023, the DOL’s WHD issued a field assistance bulletin (FAB) to WHD staff addressing Fair Labor Standards Act (FLSA) and FMLA issues. A FAB is generally instructional for Department staff and informative for employers. The FLSA provisions, generally outside of the focus of these updates, address telework situations and break time for nursing employees to express milk.

With regards to the FMLA, the FAB covers eligibility determinations for employees who telework and explains how they may be eligible for FMLA leave on the same basis as employees who report to any other worksite. Since FMLA eligibility is determined, in part, based on whether at least 50 employees are employed at the employee’s worksite or within 75 miles, the FAB explains that when an employee teleworks, the employee’s worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made. The FAB includes examples of this eligibility determination for teleworking employees.

Opinion Letter

Issued on the same day as the FAB, the WHD opinion letter helps remind employers of the nuanced, separate, and parallel legal obligations under the FMLA and the Americans with Disabilities Act (ADA) when considering employees’ requests to work a reduced schedule. Opinion letters are published by the DOL to help employers, employees, and other members of the public understand their rights and responsibilities under the law. Such letters technically pertain only to the requestor and the facts and circumstances presented.

In the circumstance posed to the WHD – an employee normally required to work more than eight hours per day, but unable to do so because of an FMLA-qualifying reason – the WHD states that the employee may use FMLA leave to work a reduced schedule indefinitely, until the employee’s FMLA leave is exhausted. The opinion letter notes that the requirements and protections of the FMLA are separate and distinct from those of the ADA, and reminds employers that an employee may be entitled to invoke the protections of both laws simultaneously. In response to the querying employer’s general statement regarding the calculation of FMLA entitlement in terms of hours (40 hours x 12 weeks = 480 hours), the opinion letter also reiterates that the FMLA provides an eligible employee with 12 “workweeks” of leave per 12-month leave year, which generally applies the number of hours the employee is regularly scheduled to work – even if above 40 hours/week. For example: an employee who ordinarily works 50 hours/week would be entitled to 600 hours of per 12-month leave year (50 hours x 12 weeks = 600 hours).

FMLA Fact Sheet

In addition to the new guidance and opinion letter, the WHD also revised their general fact sheet on the FMLA – Fact Sheet #28: The Family and Medical Leave Act. The changes to the publication include the following:

Notification that employees of public agencies (including Federal, State and local government employees) are eligible for FMLA, regardless of the number of employees;
An explanation of “exigency leave”, specifically for leave related to a family member’s foreign military deployment or recent veteran with a serious injury or illness;
Updated examples of how FMLA applies to employees using intermittent leave or reduced work schedules;
Clarification that employees do not have to specifically ask for FMLA leave, but do need to provide enough information that their employer is aware the leave may be covered by the FMLA, and that employees must provide notice to their employer as soon as practical;
Notification that in some circumstances, such as when an employee’s health care provider is unable to complete the certification information in a timely manner, employees are allowed additional time to provide the information;
Confirmation that employees have the right to go back to work at their same job or to an equivalent job with the same pay, benefits, and other terms and conditions of employment at the end of their FMLA leave;
An explanation that a violation of employee’s rights may include changing the number of shifts assigned to the employee, moving the employee to a location outside of their normal commuting area, or denying the employee a bonus for which they qualified before their FMLA leave;
Reminder that employers cannot threaten, discriminate against, punish, suspend or fire an employee because they requested or used FMLA leave; and
Clarification of special FMLA rules applicable for teachers, flight crew members and servicemembers.

Next Steps

The WHD’s FAB, opinion letters, and FMLA Fact Sheets all interpret or explain existing laws and regulations and therefore, to the extent applicable, are effective immediately. Covered employers should review the updated information with legal counsel and confirm their FMLA policies are compliant.

The FMLA requires employers to keep employee medical record confidential and separate from routine personnel files. Employers must also ensure employee records and confidentiality protocols are compliant with other applicable laws such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The Business Group will keep members updated on FMLA-related developments and guidance.