Earlier this month, the U.S. Department of Labor (“DOL”) issued two new opinion letters regarding the federal Family and Medical Leave Act (“FMLA”). Although a DOL opinion letter does not have the force of “law,” it does provide guidance about how the agency interprets and will seek to enforce the law. DOL opinion letters offer employers an opportunity to evaluate their practices and procedures and make any necessary adjustments to minimize risk.
What Does the DOL Want Employers to Know?
First, the DOL reminded employers how to properly calculate FMLA usage during weeks containing a holiday and other times when business activity ceases. In an opinion letter involving a school, the DOL stated:
- “When a holiday falls during a week when an employee is taking FMLA leave in increments of less than a full workweek, the holiday does not count against the employee’s FMLA leave entitlement unless the employee was scheduled and expected to work on the holiday and uses FMLA leave for that day.”
- “When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire workweek counts as FMLA leave.”
- “If the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks, the days the employer’s business activity has ceased for one or more weeks do not count against the employee’s FMLA leave entitlement.”
The examples given in the letter are equally applicable to other types of organizations. One example involves a one-day closure for inclement weather. This example provides that, if the employee is scheduled to have FMLA for a medical appointment every Tuesday and the employee’s obligation to work is canceled for inclement weather reasons on a Tuesday, the employee’s FMLA entitlement should not be reduced for the standing appointment. However, if an employee is on FMLA “for Monday through Friday of a week, but the school is closed on Tuesday, the employee would use a full week of FMLA leave despite not being required to report to work on Tuesday.” The DOL letter states, “Whether the closure was planned or unplanned has no impact on the amount of leave an employee uses. Nor are the specific reasons for the temporary closure material to the analysis.”
In the second letter, the DOL opined about whether an employee may use FMLA protected leave to travel to or from a medical appointment for a serious health condition of the employee or of a qualifying family member. The DOL letter states, “In defining ‘serious health condition’ to incorporate immediate medical treatment of, as well as ongoing care for, said condition, the statute makes clear that FMLA leave is appropriately used for time spent in medical appointments to diagnose, monitor, address, or treat an employee’s serious health condition. See id. Part and parcel of obtaining care and continuing treatment from a medical provider may require the employee to travel to the provider’s location.” However, travel time that is not related to the serious health condition would not be protected by the FMLA.
The DOL provides several examples to demonstrate this travel concept. One example is a situation in which an employee takes three hours off of work – two hours of which were spent traveling to the physical therapy center and receiving medical treatment and one hour of which was spent going to the library and the grocery store. The DOL concludes that the two hours the employee needs for the physical therapy is protected by the FMLA, but the time spent in activities not related to her serious health condition (going to the library and shopping) would not be FMLA-protected leave and would not count against her entitlement. It would behoove the employee to explain in advance that some of the time will not be used for FMLA purposes so that the employer can properly record the deduction from her FMLA entitlement and to avoid the appearance of fraudulent use of FMLA leave.
The DOL letter also points out that that an employer cannot require a medical certification to include information about an employee’s travel time. “Neither the Act nor FMLA regulations anticipate that health care providers will furnish information about an employee’s travel time on a medical certification. See 29 U.S.C. § 2613(b); 29 C.F.R. § 825.306(a). The FMLA permits an employer to request ‘medical facts within the knowledge of the health care provider regarding the condition.’ 29 U.S.C. § 2613(b)(3). A healthcare provider’s knowledge does not extend to the travel time necessary for a patient to get to and return from a needed appointment. Accordingly, a medical certification need not include any information regarding travel time to be complete and valid under the FMLA and the Division’s regulations.”
Take-Aways
These letters are a reminder to review FMLA protocols to ensure compliance. If you have questions, contact the author of this post or your regular Lathrop GPM attorney.