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DOL Says Intermittent FMLA Leave Can Result in Permanent Schedule Change

    Client Alerts
  • March 24, 2023

On February 9, the U.S. Department of Labor (DOL) issued an Opinion Letter that discusses the interaction between the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) in terms of how an employee’s chronic serious health condition may entitle them to a shortened schedule for an indefinite period of time.

What happens when an employer has its employees regularly work 50 hours per week, but one of those employees has developed a chronic serious health condition that only permits the employee to work 40 hours per week? The two federal laws that come to mind are the ADA and the FMLA because those statutes deal with employee medical conditions. The employer closely works with Human Resources and determines that, according to ADA guidelines, it cannot accommodate the employee’s request to have an indefinite 40-hour workweek because that would create an undue hardship on the business. The analysis, however, does not stop there. The employer must perform a separate analysis under the FMLA to determine if the employee is entitled to job-protected leave. This is what the Opinion Letter sought to address.

The FMLA entitles eligible employees to take up to 12 workweeks of leave in a 12-month period because of a serious health condition that makes the employee unable to perform the functions of their position. The leave does not need to be taken in large blocks of time, and under certain circumstances an employee may use intermittent or reduced scheduled leave. Employees using intermittent or reduced schedule leave may use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave – generally one hour at a time.

To complete the above analysis, the employee may use intermittent FMLA leave to shorten their workweek from 50 hours to 40 hours if they remain eligible and have a qualifying reason for leave. Because the FMLA calculates leave entitlement by workweeks (12 workweeks of leave in a 12-month period), the employee from our hypothetical would be entitled to 600 hours of leave in each 12-month period. This permits the employee to use 10 hours per week, shorten the workweek from 50 to 40 hours, and then still have approximately 80 hours of leave remaining, thereby creating a shortened schedule for an indefinite or even permanent period of time.

This result appears to supersede the ADA’s undue hardship exception otherwise applicable to schedule change requests. If presented with this type of request, employers may consider requiring employees to seek a second (and possibly a third) medical opinion to determine if the employee’s medical condition is really adversely affected by an additional ten hours of work per week. The employer should also require recertification of the need for such schedule change every six months as permitted under FMLA rules.