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Important New DOL Guidance on the FMLA

by Jennifer Shaw and Melissa Whitehead | | February 24, 2023

The federal Department of Labor recently issued new guidance on the federal Family and Medical Leave Act (“FMLA”). Covered employers should pay careful attention to these developments.

First, earlier this month, the Department’s Wage and Hour Division (“WHD”) issued its first Opinion Letter since January 2021 – and it’s a doozy! The WHD took the position that an FMLA-eligible employee may use intermittent leave under the FMLA to work a reduced work schedule for “an indefinite period.”

The employee at issue sought to reduce indefinitely their schedule to eight hours per day due to a chronic serious health condition. The employer contacted the WHD for guidance, taking the position that the FMLA does not permit employees permanently to convert a full-time job to a part-time job.

In its opinion, the WHD reminded the employer that employees may take intermittent FMLA leave in increments of weeks, days, hours, and sometimes even smaller increments, when “medically necessary.” An employee may continue to use FMLA time for as long as they continue to be eligible. So, if an employee never exhausts their FMLA leave entitlement, a reduced schedule could continue indefinitely.

The WHD also took this opportunity to emphasize that eligible employees are entitled to 12 workweeks of leave per year. If an employee works more than 40 hours per week, then they are entitled to more than 480 hours of FMLA leave per 12-month period.  Any policy that limits FMLA leave to 480 hours per year does not comply with this rule.

You can read the Opinion Letter here.  Also, for more information about FMLA leave (and other types of leave and reasonable accommodations), join us for our upcoming two-day Intensive Workshops: Effectively Managing Leaves of Absence and Reasonable Accommodations, “The Basics” on March 14 and 21, 2023 and “Advanced Topics” on August 15 and 22, 2023.

In related news, on February 9, 2023, the WHD published a Field Assistance Bulletin applying provisions of the Fair Labor Standards Act (“FLSA”) and the FMLA  to teleworkers. Here are the key highlights:

Wage and Hour Issues

  • Employers must pay teleworkers for all hours worked, including non-scheduled time. Employers also must “exercise reasonable diligence” to determine if teleworkers are working unscheduled hours by having a “reasonable reporting procedure” for non-scheduled time.
  • Teleworkers must be completely relieved from duty during meal periods. If a teleworker takes work calls while on their meal period, they are not relieved from duty. Employers must tell teleworkers in advance that they may leave the job, use the time for their own purposes, and either will not have to commence work until a specified time or may choose when to resume work.
  • Lactation accommodations requirements apply to teleworkers, too. Employers must provide breaks for lactation purposes, and ensure employees are “free from observation by any employer provided or required video system,” including web conferencing platforms, when expressing milk.

FMLA Issues

  • For FMLA eligibility purposes, a teleworker’s personal residence is not the “worksite,” within 75 miles of which there must be 50 employees. Instead, a teleworker’s worksite is the office to which they report or from which they receive assignments. All employees working within 75 miles of that office location count toward the eligibility requirement (even if they are working remotely).

You can read the Bulletin here.

Contact your favorite employment lawyer if you have any questions.

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