Department of Labor Issues Opinion Letter Clarifying FMLA Leave for Overtime Workers

The United States Department of Labor (“DOL”) released an opinion letter on February 9, 2023 (the “Letter”) clarifying covered leave for overtime-eligible employees under the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”). The Letter pertains to FMLA-eligible employees who work more than 40 hours in a given workweek. The DOL explains that employees working in excess of 40 hours per week that qualify for reduced schedule leave under the FMLA may take such leave on an hour-by-hour basis. Although the same employees subject to overtime requirements may also request reduced schedule leave as a reasonable accommodation under the ADA, employers must separately analyze such leave under both the FMLA and ADA.

The FMLA provides eligible employees up to 12 weeks of unpaid leave in a 12-month period for qualifying individual and family-related medical conditions that render employees temporarily unable to perform their job. The FMLA also guarantees job protection and continued health insurance coverage for employees during the leave period. The FMLA calculates leave periods based on an employee’s typical and regularly scheduled “workweek.” For example, an FMLA-eligible employee who typically works 40 hours per week is guaranteed 480 hours of unpaid leave during a 12-month period. However, an employee who typically works 50 hours per week is eligible for 600 hours of FMLA leave during the same 12-month period. Voluntary overtime hours do not increase the amount of hours available to an employee for the purposes of FMLA leave.

Even though the FMLA calculates leave based on an employee’s workweek, DOL regulations permit employees to take leave in shorter increments if employers use shorter increments for other types of leave. For example, if an employer calculates sick leave in increments of 30 minutes, FMLA leave must also be available in increments no greater than 30 minutes. Additionally, nothing prevents employers from counting FMLA leave in shorter increments than other types of leave. Employees may also be eligible for FMLA-covered leave for an indefinite period of time—as long as the eligible employee continues to have a qualifying reason for such leave.

Employees eligible for FMLA leave may be required to work in excess of 8 hours per day as a requirement of their job; for example, nurses are often scheduled for 12-hour shifts. In this case, employees on FMLA-qualifying leave may be eligible to a reduced schedule if the “serious health condition” makes them unable to work overtime hours. In that instance, the employee may work part of this shift (e.g., 8 hours), and use FMLA leave for the remaining hours of the shift (4 hours). As long as the employee continues to have a qualifying medical event or condition, the Letter clarifies this reduced schedule work arrangement may continue indefinitely until FMLA leave has been exhausted.

For the purposes of the ADA, an employer is prohibited from discriminating against a qualified individual on the basis of a disability, defined as any physical or mental impairment that substantially limits a major life activity. For individuals with a qualifying disability, an employer must provide a reasonable accommodation in the absence of undue hardship. The Letter highlights that, although an employer may offer reduced schedule leave as a reasonable accommodation for a disabled employee, an employer cannot reject an employee’s use of FMLA leave in the process. Since the FMLA and ADA are separate concepts with distinct protections, employers must abide by the requirements and restrictions in both laws to the protection and benefit of their employees. This means that an employer must analyze whether an employee is eligible for reduced schedule leave in response to a “serious health condition” under the FMLA separately from whether a modified schedule or reduction of overtime hours may be considered reasonable accommodations for a qualified individual with a disability under the ADA. In practice, an employer cannot require an FMLA-eligible employee to accept a reasonable accommodation rather than provide protected leave. However, the FMLA would not prevent an employee from voluntarily accepting such accommodation under the ADA.

The DOL’s guidance in the Letter underscores the important considerations for employers providing leave to employees under the FMLA and ADA. An employer does not meet, and cannot neglect its responsibilities under, the FMLA if it merely prefers to provide an employee with a reasonable accommodation under the ADA, and vice versa. Rather, the FMLA and ADA are two distinct concepts that must be analyzed separately in protecting covered employees under both laws. A consequence of this distinction may be that an employee exhausts all eligible leave under the FMLA, but may still be entitled to a reduced schedule as a reasonable accommodation under the ADA.