DOL Weighs In on FMLA

Employment Law

In a recent bulletin, the Department of Labor (DOL) provided an important reminder to employers that a remote worker may be eligible for leave under the Family and Medical Leave Act (FMLA), while also sharing an opinion letter considering whether an employee may use FMLA leave to limit their work schedule for an indefinite period of time.

In Field Assistance Bulletin (FAB) 2023-1, the agency offered guidance to field staff on a variety of issues related to remote work, including how to apply eligibility rules under the FMLA when employees telework or work away from an employer’s facility.

To be eligible for FMLA leave, among other things an employee must work at a worksite where the employer has 50 or more employees within 75 miles.

When an employee works from home, the employee’s personal residence is not a worksite. Instead, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.

“Thus, if 50 employees are employed within 75 miles from the employer’s worksite (the location to which the employee reports or from which their assignments are made), the employee meets that FMLA eligibility requirement,” the DOL explained.

The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area—including employees who telework and report to or receive assignments from that worksite, the agency noted.

“Employees can have the flexibility of work from home, telework or work away from premises managed or controlled by the employer and also remain covered by the protections of … the FMLA,” according to FAB 2023-1.

Issued concurrently, Opinion Letter 2023-1-A addressed whether an employee may use FMLA leave to limit their work schedule for an indefinite period of time if the employee has a chronic serious health condition and a health care provider certifies that the employee has a medical need to limit their schedule.

The employer expressed concern that multiple workers had presented medical certifications for taking FMLA leave from work after completing an eight-hour workday, making it difficult for the employer to satisfy its 24-hour coverage needs.

But the DOL said that an employee may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have not exhausted their FMLA leave entitlement.

“In this case, if an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement,” the agency said. “The employee may continue to use FMLA leave until the employee has exhausted their entitlement to FMLA leave. Thus, if the employee never exhausts their FMLA leave, they may work the reduced schedule indefinitely.”

The employer suggested that an employee’s need to limit the workday to an eight-hour day might be better suited as a reasonable accommodation under the Americans with Disabilities Act (ADA).

However, Opinion Letter 2023-1-A made clear an employee may be entitled to invoke the protections of both laws simultaneously, as the requirements and protections of the FMLA are separate and distinct from those of the ADA.

“Thus, 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,” the DOL said.

To read FAB 2023-1, click here.

To read Opinion Letter 2023-1-A, click here.

Why it matters: Addressing FMLA issues, the DOL’s bulletin was clear that remote workers can be eligible for leave under the statute, providing guidance on how to determine an employee’s worksite, while the opinion letter explained that employees may use FMLA leave to limit their work schedule for an indefinite period of time.



pursuant to New York DR 2-101(f)

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