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DOL Distinguishes Between FMLA and ADA Rights With Regards to Required Overtime

by | Mar 8, 2023 |

The Department of Labor (“DOL”) has issued Opinion Letter FMLA 2023-1-A with regards to employees who have health conditions that prevent them from working more than 40-hours per week.

DOL was asked if employees may use Family and Medical Leave Act (“FMLA”) leave to limit their work schedule for an indefinite period of time if the employees have chronic serious health conditions and health care providers certify that these employees have a medical need to limit their work schedule.  The questioner expressed concern that several employees have presented medical certifications for taking FMLA leave after completing an eight-hour workday, although the employer required these employees work longer than eight hours.  The questioner suggested that for employees who must work more than eight hours a day, such limitations might be “better suited” for reasonable accommodation under the Americans with Disabilities Act (“ADA”) than for FMLA leave.

Law. In general, the FMLA entitles eligible employees to up to twelve “workweeks” of leave in a twelve month period: (i) for one’s own “serious health condition”; (ii) to care for a seriously ill or injured spouse or dependent; (iii) for the birth adoption or placement of a child; or (iv) to deal with “exigencies” related to their spouse’s military deployment.

Intermittent FMLA leave may be taken periodically and may consist of separate blocks of leave for a single illness or injury.

The FMLA defines a “ serious health condition” as an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider.  FMLA implementing regulations specify that a serious health condition involving “continuing treatment” includes chronic conditions. Generally, a chronic serious health condition is one which requires visits to a health care provider at least twice a year and continues over an extended period.

Title I of the ADA prohibits employers from discriminating against employees on the basis of disability and requires that employers provide “reasonable accommodations” to disabled employees when doing so does not cause an “undue hardship” for the employer. A reasonable accommodation is generally any change in the way things are customarily done that enables employees with disabilities to work and enjoy equal employment opportunities.  Under the ADA, “disability” is defined as: a physical or mental impairment that “substantially limits” one or more “major life activities”; a record (or past history) of such impairment; or being regarded as having a disability.

DOL Opinion Letter. DOL notes in its opinion that a “serious health condition” under the FMLA and a “disability” under the ADA are different concepts and must be analyzed separately.  Leave provided as an accommodation under the ADA may also be FMLA-protected leave.  However, “[t]he FMLA regulations make clear that, in such cases, the employee maintains their rights under both the FMLA and the ADA.  Nothing in the ADA modifies or limits the protections of the FMLA; nor does the FMLA modify or limit the protections of the ADA.” In the case of an employee who needs leave for a serious health condition under the FMLA and is also a qualified individual with a disability under the ADA, requirements from both laws must be observed and applied in a manner that assures the most beneficial rights and protection to the employee.  In fact, the FMLA may apply in addition to other federal, state or local laws, an employer’s policies, or collective bargaining agreements.  An employer must provide leave under the applicable provision(s) that gives the employee the greatest rights and protections.

Next the opinion notes that the FMLA refers to “workweeks,” and not hours worked. Therefore, if an employee is regularly scheduled to work more than 40 hours per week, he is entitled to more than 480 hours of FMLA leave per twelve-month period.  For example, an employee who is required to work 50 hours per week would be entitled to 600 hours of FMLA leave in the twelve-month period. In contrast, voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee’s FMLA leave entitlement.  In addition, while such an employee is not required to accept an ADA reasonable accommodation in lieu of taking FMLA leave, the FMLA does not prevent the employee from accepting, voluntarily and without coercion, the reasonable accommodation.

DOL states that employees may continue to use FMLA leave for an indefinite period of time as long as they continue to be eligible and have a qualifying reason for leave.  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 work shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s annual FMLA leave entitlement.  If the employee never exhausts his FMLA leave, he may work the reduced schedule indefinitely.

DOL also notes that an employee who has exhausted his FMLA leave and is no longer entitled under the FMLA to work a reduced schedule may still have additional rights under the ADA or other laws.

The DOL Opinion Letter is available at: