On February 9, 2023, the United States Department of Labor (“DoL”) issued opinion letter FMLA2023-1-A, which clarified whether employees with serious health conditions who regularly work more than eight hours per shift can use the Family and Medical Leave Act (“FMLA”) to limit their workday to eight hours.
What is FMLA Leave?
Under the FMLA, employees who work for covered employers must be permitted to take up to twelve workweeks of unpaid leave in a twelve month period if a “serious health condition makes the employee unable to perform the functions of the position of such employee.” FMLA leave can be taken all at once or intermittently – for example, in increments of days or even hours. Also, eligible employees are entitled to take twelve workweeks of FMLA leave in a twelve-month period. So, an employee who regularly works 30 hours per week is entitled to take twelve 30-hour weeks of FMLA leave and an employee who regularly works 50 hours per week is entitled to take twelve 50-hour weeks of FMLA leave.
The Department of Labor’s Opinion Letter
Recently, an employer asked the DOL whether an employee, who regularly worked more than eight hours in a day, could use FMLA leave to reduce shifts to eight hours per day because their serious health condition prevented working longer hours. The DOL said yes, an employee who qualifies for FMLA leave and normally works more than eight hours per shift can use FMLA leave to reduce shifts to eight hours. The remaining hours that the employee would normally have worked will count against the employee’s twelve workweeks of FMLA leave.
Remember, not every employer is required to provide employees with FMLA leave and not every health condition qualifies as a “serious health condition.” The rules are confusing, so consult with an attorney at Gibbons Law Group, PLLC if you have questions about whether you are eligible to take FMLA leave or if you believe your employer violated your FMLA rights.