The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) recently released informal guidance to address some issues arising under the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) that commonly challenge employers. Field Assistance Bulletin (FAB) No. 2023-1 addresses points such as how to count the number of eligible employees for FMLA and FLSA purposes when taking into account teleworkers, and the interaction of the FMLA with the Americans with Disabilities Act Amendments Act (ADAAA). WHD Opinion Letter FMLA2023-1-A addresses counting hours under the FMLA’s 12-workweeks requirement.

FMLA Eligibility: Counting Remote Employees

One of the criteria for FMLA eligibility is that an employee must work at a worksite where 50 or more employees are employed within 75 miles of that worksite. Prior to COVID-19, remote work was less prevalent. As a result, whether a worksite met the eligibility criteria was often answered by merely confirming a physical headcount at the worksite—but how or whether to include remote employees has raised questions for employers. For FMLA eligibility purposes, an employee’s personal residence is not a worksite. Instead, the employee’s worksite is the office to which he or she reports and from which assignments are made. FAB No. 2023-1 serves as a helpful reminder to employers regarding this regulation. When considering eligibility for remote workers, the DOL guidance points out that “the determination of the worksite for an employee who teleworks is fact specific and will be based on factors, such as where the employee reports to work or the location where the employee’s assignments are made.”

FLSA: Serious Health Conditions and Reduced Schedules

The DOL indicated in Opinion Letter FMLA2023-1-A that the ability to work a reduced schedule is fact-specific and often involves an interplay between the FMLA, the Americans with Disabilities Act Amendments Act (ADAAA), and where applicable, state law, along with a consideration of applicable leave policies. There is case law explaining an employer’s obligations to respond to a request for indefinite ADAAA leave. The opinion letter provides helpful guidance about the intersection between ADAAA and FMLA obligations, and it reminds employers that they should consider their legal obligations under both the FMLA and ADAAA when considering requests to work a reduced schedule. FMLA2023-1-A further explains that employers may not reject a request for reduced-schedule leave under the FMLA by arguing that such a request is better addressed under the ADAAA. Likewise, the guidance points out that employers should not forget their FMLA obligations when addressing an ADAAA request for reasonable accommodation. According to the opinion letter, “Nothing in the ADA modifies or limits the protections of the FMLA; nor does the FMLA modify or limit the protections of the ADA.”

Counting Hours Worked for Annual Leave Under FMLA

The FMLA entitles eligible employees to a total of 12 workweeks of FMLA leave per year, for certain qualified reasons. For employees taking 12 workweeks consecutively, this is easily calculated. For employees taking their 12 workweeks on an intermittent basis or a reduced schedule, FMLA2023-1-A serves as a helpful reminder to employers regarding calculation of the total leave entitlement. The FMLA regulations state that an employer “may convert these fractions to their hourly equivalent so long as the conversion equitably reflects the employee’s total normally scheduled hours.” For employees regularly scheduled to work in excess of 40 hours per week, the opinion letter reminds employers that employees who are regularly scheduled to work more than 40 hours per week are entitled to more than 480 hours of FMLA leave per each 12-month period. While this was previously addressed in 2002 in Opinion Letter FMLA2002-1, this is an important reminder.

Key Takeaways

Compliance with the FMLA and ADAAA remains vexing to many employers. The field assistance bulletin and opinion letter serve to educate employers on the complexities associated with determining the FMLA eligibility of a remote workforce and managing reduced-schedule requests in a manner that addresses employers’ obligations under both the FMLA and ADAAA.