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On February 9, 2023, the U.S. Department of Labor’s (DOL’s) Wage and Hour Division (WHD) published Opinion Letter FMLA2023-1-A, clarifying the permissible use of leave under the Family and Medical Leave Act (FMLA). Specifically, according to the letter, FMLA-eligible employees who typically work more than eight hours per day may indefinitely use FMLA leave to limit their workdays to eight hours. 

The WHD issued the letter in response to several questions from an employer. The employer’s business relied on 24-hour coverage, which normally required employees to work more than eight hours per day. Multiple employees, however, presented the employer with medical certifications stating their serious chronic health condition(s) required them to work only eight hours per day. The employer asked the WHD whether it was permissible for the employees to do so indefinitely and whether the employees’ limited schedules were “better suited” to be addressed under the Americans with Disabilities Act (ADA). 

The WHD explained that employees who are eligible and have a qualifying reason for leave under the FMLA “may continue to use FMLA leave for an indefinite period of time.” If employees have FMLA-qualifying reasons that they cannot work more than eight hours at a time, they can use FMLA leave for any additional scheduled hours until their entitlement to FMLA leave is exhausted. Accordingly, if an employee never exhausts their FMLA leave, that employee could continue working their reduced schedule indefinitely.  

The WHD also explained that the ADA and FMLA do not limit one another as they are separate and distinct laws. Employers, rather, must consider both laws when determining leave entitlements. The letter notes that an employee who has exhausted their FMLA leave and is no longer entitled under the FMLA to work a reduced schedule may have additional rights under the ADA or other laws. 

Employers Council has resources to help you navigate leave requirements under the FMLA and ADA and understand how they work together. If you have any questions, please contact our Member Experience Team.