With no end in sight, DOL reiterates its stance on permanent FMLA

The U.S. Department of Labor (DOL) recently issued an opinion letter regarding permanent Family and Medical Leave Act (FMLA) leave and how it affects employers.

‘Indefinite period of time’

On February 9, 2023, the DOL issued Opinion Letter FMLA 2023-1-A relating to whether employees could “limit their workday to eight hours a day for an indefinite period of time” when the standard work schedule is typically more than eight hours a day.

In this instance, the DOL unsurprisingly and once again indicated employees could use all existing FMLA leave on an annualized basis to reduce their work schedule. Of note, the employer requesting the opinion letter had proposed that such a schedule change be assessed under the Americans with Disabilities Act (ADA) rather than be subject to FMLA protections. This was due in part to concerns that “multiple employees have presented medical certifications for taking FMLA leave from work making it difficult to satisfy the 24-hour coverage needs of your department.”

In this instance, the employer was seeking advice on a truly practical question: How do I staff a department and keep my company running (frequently essential services) if everyone has a shortened workday? In assessing this question, the DOL reiterated its consistent position that “leave provisions of FMLA are wholly distinct from the reasonable accommodation applications of employers covered under the ADA.”