On February 9, 2023, the United States Department of Labor, Wage and Hour Division ("DOL") published an Opinion Letter addressing the use of leave pursuant to the Family and Medical Leave Act ("FMLA") by an employee with a serious health condition to create a reduced scheduled workweek for an indefinite time period. That same day, the DOL also clarified in a Field Assistance Bulletin the application of several specific Fair Labor Standards Act ("FLSA") provisions and FMLA eligibility requirements to remote-based employees. Neither of these publications create new law, but each serves as a helpful reminder of some of the more precise requirements of each law. Below is a summary of the main points of each publication.
The DOL's Opinion Letter addresses a request by an employee to work no more than eight hours per day due to a serious health condition. The employer regularly required the employee to work overtime each week, including hours in excess of eight in one day. The employer assumed the FMLA was inapplicable in this scenario because the employee would still be working at least 40 hours per week, and therefore, presumed no FMLA was being used. Instead, the employer sought to analyze the employee's request solely under the Americans with Disabilities Act ("ADA").
The DOL corrected the employer and advised that the FMLA affords employees "12 work weeks" of leave per year for certain qualifying...
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