On February 9, 2023, the US Department of Labor Wage and Hour Division (DOL) issued an opinion concerning whether an employer is required to allow an employee to work a reduced schedule due to a chronic serious health condition under the federal Family and Medical Leave Act (FMLA). This Legal Update will review the legal issues arising out of employees’ requests for intermittent and reduced schedule leaves of absence under the Wisconsin Family and Medical Leave Act (WFMLA) and the FMLA, as well as highlight the guidance from the February 9, 2023, opinion.
The first step in determining whether an employee is entitled to an intermittent or reduced schedule leave of absence under the WFMLA and the FMLA is to determine whether the employee is eligible for leave under the WFMLA and/or the FMLA.
- An employee is eligible for FMLA leave if he/she has actually worked for the employer for at least 12 months (which need not be consecutive) and who worked at least 1,250 hours for the employer during the 12 month period immediately preceding the leave.
- An employee is eligible for WFMLA leave if he/she has worked for the employer for at least 52 consecutive weeks and who worked for the employer for at least 1,000 hours during the preceding 52 week period. The WFMLA counts hours actually worked and the hours for which the employee was paid pursuant to a regular policy of paid vacation leave, sick leave or other paid leave.
Note: An employee is not eligible for FMLA leave, if he/she works for an employer who does not employ at least 50 employees who work within 75 miles of one another.
Note: In some cases, an employee is eligible for leave under the WFMLA and not the FMLA.
An employee is not entitled to an intermittent or reduced schedule leave of absence under the WFMLA and/or the FMLA beyond the specified amount of leave available to the employee under each law.
During a selected 12 month period (which could be a calendar year, a fiscal year, a rolling year, or another 12 month period), an eligible employee is entitled to 12 weeks of FMLA leave for the birth or adoption of the employee’s child or to care for the employee’s sick parent or child.
During a calendar year, an eligible employee is entitled to the following WFMLA leave: 6 weeks for birth or adoption of the employee’s child, 2 weeks for the serious health condition of the employee’s parent, child, or spouse, and 2 weeks for employee’s own serious health condition.
Note: Employers may run FMLA and WFMLA leaves concurrently, if the employee is eligible for both and if both laws apply to the reason for the leave.
Intermittent or Reduced Schedule Leave
An employer must allow an employee to take FMLA leave on an intermittent or reduced schedule basis if the employee’s health care provider or the health care provider for the employee’s parent, child, or spouse, determines that such leave is medically necessary. An employer may (but is not required to) allow an employee to take FMLA leave on an intermittent or reduced schedule basis for the birth or placement of a child.
An employer must allow an employee to take WFMLA leave on an intermittent or reduced schedule basis, if requested by the employee and if the employee provides the employer with “a proposed schedule for the leave with reasonable promptness after the employee learns of the probable necessity for the leave” and the proposed schedule must be sufficiently definite so as to allow the employer to schedule a replacement, unless the need for health care consultation or treatment does not allow for such a definitive schedule.
Note: With an intermittent or reduced schedule FMLA or WFMLA leave, it is important for the employer to keep track of the amount of leave taken by the employee and which law(s) applies to the leave because the employee is still only eligible to take the designated allotment of leave provided for under the applicable law(s). Any approved leave beyond the FMLA and the WFMLA allotment may be covered by another law, policy, employee handbook provision, or contract provision.
Intermittent or Reduced Schedule Leave for an Employee with a Chronic Serious Illness
In February 2023, the DOL issued an opinion concerning an employee’s right to use FMLA leave to limit their work day to a specified number of hours (less than the scheduled hours for the position) when the employee’s chronic serious health condition limits the employee’s ability to work the full schedule for an indefinite period of time. In this opinion, the DOL described situations in which an employee requested an intermittent or reduced schedule leave of absence under the FMLA for an indefinite period of time. The individual requesting the opinion suggested that an employer could deny the leave under the FMLA and instead process the employee’s request as a request for a reasonable accommodation of a disability under the Americans with Disabilities Act (ADA).
The DOL concluded that an employee may use his/her allotment of FMLA leave to provide for a reduced schedule when the employee’s serious health condition would not allow him/her to work the regular schedule. The DOL explained that the fact that the employee’s serious health condition is not expected to resolve itself in a finite period of time is not relevant to the analysis. The DOL further explained that the employee could continue to use the annual allotment of FMLA leave until the leave allotment has been exhausted. The DOL suggested that, depending upon the reduced schedule specified by the health care provider, it is possible that an employee could use his/her FMLA leave to allow for a reduced schedule, indefinitely. Finally, the DOL rejected the argument that such a reduced schedule is not available under the FMLA because it is “better suited” as a reasonable accommodation under the ADA. The DOL noted that the FMLA and the ADA are separate and distinct laws, each of which may apply to a particular situation, but one law does not supersede or replace the other law.
When an employee, who is eligible for leave under the WFMLA and/or the FMLA, requests an intermittent or reduced schedule leave under the WFMLA or the FMLA or requests leave or a reduced schedule as a reasonable accommodation under the ADA or the Wisconsin Fair Employment Act (WFEA) due to the employee’s medical condition, it is important for the employer to consider the impact of the various other laws that may provide the employee with approved leave. The employer must also not forget about the paid and unpaid leave benefits set forth in a policy, employee handbook provision, or contract provision.
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or your Renning, Lewis & Lacy attorney.
Shana R. Lewis
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Our legal updates provide general information only and are not intended to provide legal advice or create an attorney-client relationship.