by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel
February 14, 2023
Does this sound familiar? Your employee Alex works in a department that regularly requires mandatory overtime. Alex has presented you with an FMLA request and a certification from a health care provider limiting Alex to working 8 hours per day – indefinitely. Alex is the 4th employee on a team of 10 to ask for this FMLA reduced schedule/intermittent leave. You fear there will be others. Limited worker hours in these positions jeopardizes your business model, customer service, and profitability, and puts additional burdens on those employees still working beyond 8 hours.
Can you deny Alex's FMLA request, now or at some point in the future? Can you handle this as an ADA accommodation request rather than an FMLA request?
And so enters the unwelcome but not unexpected answer, in the form of a new Opinion Letter issued on February 9 by the Wage & Hour Division of the U.S. Department of Labor (we're buddies; we'll use DOL for short). The DOL's opinion provides us with at least 3 lessons, all favorable to the employee. But don't hyperventilate yet – although we can't change the law, we have some suggestions on how to mitigate this type of situation.
Lesson #1: Yes, Alex may be able to use FMLA to avoid overtime indefinitely.
An employer sought DOL guidance on just this type of situation. Zing! In no uncertain terms, the DOL, in effect, told the employer to put on its big girl pants and give the employees what they ask for under the FMLA:
"An employee 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. . . . [I]f 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 . . . 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 DOL didn't really address the employer's plight, that having numerous employees request the same limited schedule imposes significant operational difficulties on the employer's business. Sounds like an ADA "undue hardship" argument to me. The employer didn't use that term but that's where they were going and the DOL left the employer to twist in the wind on that one. No help at all.
Lesson #2: You've got to count mandatory overtime toward the employee's FMLA entitlement.
The DOL in the Opinion Letter makes a very important point about calculating an employee's FMLA entitlement, which is measured in weeks but can be converted to hours. An employee does not accrue FMLA-protected leave at any particular hourly rate; rather, it is based on the employee's scheduled workweek (some exceptions apply). If an employee is scheduled for mandatory overtime, those hours count toward the employee's FMLA entitlement. It's like a balancing scale: mandatory overtime is used to calculate the employee's FMLA entitlement, and on the other side of the scale, mandatory overtime not worked due to an FMLA reason is deducted from the employee's remaining annual entitlement.
On the flip side, voluntary overtime reflects another balancing scale: It is not counted toward the employee's FMLA entitlement and conversely, any voluntary overtime missed for an FMLA reason is not deducted from the employee's entitlement.
So let's do the math. Suppose Alex is required to work 10 hours per day, 5 days per week. Alex gets an FMLA certification from her health care provider limiting her work to 8 hours per day. Alex's FMLA entitlement for 12 workweeks converted to hours is 50 hours per week x 12 weeks, or 600 hours of FMLA per leave year. If Alex limits her work to 8 hours per day, she will be using 10 hours of FMLA entitlement per week. Over the course of a full year (no vacation?) Alex will use 520 FMLA hours. And under any leave year calculation method, Alex will be able to use FMLA to work a reduced schedule indefinitely (barring FMLA use for another covered leave of absence).
Lesson #3: The ADA may still play a role.
Remember, you can't ignore the ADA even if the FMLA applies. An employee who needs leave for a serious health condition under the FMLA may also be a qualified individual with a disability under the ADA. The employer must observe and apply the requirements of both laws in a manner that assures the most beneficial rights and protection to the employee. Wage and Hour Division (WHD) Field Operations Handbook 39j07. For example, the ADA might require an employer to offer an employee a reasonable accommodation, while the FMLA would entitle the employee to take leave of absence and return to work at the same or equivalent position. See 29 C.F.R. § 825.702(d)(1). If the employee chooses FMLA leave, an employer may not require the employee to continue working with a reasonable accommodation.
As another example, an employee using FMLA to limit overtime might exhaust their entitlement, especially if the employee uses FMLA for other leave purposes during the year. In that case the employee may still have rights to a reduced schedule under the ADA or other laws (think state equivalents), but the employer will have the ability to engage in the interactive process and see whether there is a workplace accommodation that would enable the employee to work the full schedule.
You can read the full Opinion Letter FMLA2023-1-A and all the citations to authorities here.
What's an employer to do?
At Matrix we are seeing more and more of these situations, where the concept of using FMLA to avoid mandatory overtime is being passed around the workplace like nachos at a Superbowl party. In many cases there's not much you can do – the law is the law. But here are some steps you can take to minimize the risk of being taken for a ride.
- Consider the second/third opinion process. Look for indications that a second opinion might be justified, and a third if necessary. You can follow this process (not used often enough, in my view) if you have reason to suspect the validity of the certification signed by the employee's health care provider.
- Is this a brand-new condition for the employee? If not, how did employee manage mandatory overtime despite a serious health condition prior to the FMLA leave request? Any reasonable suspicions there?
- Are some of the employees with certifications supporting a no-overtime schedule going to the same provider? Are they reporting the same or similar serious health conditions? Suddenly, many bad backs? Is the language on the certs suspiciously similar, as if it was fed to the provider by the employee after learning from other employees what worked for them?
Often you won't realize what's going on until after several no-overtime certifications have come in. But start considering the second opinion process on new requests as soon as you spot the trend, if it is justified by the facts. And for those already approved, you can consider a second opinion if the employee requests a continued no-overtime schedule for the next leave year.
- Discuss other options such as a workplace accommodation. You can and should discuss with the employee other options such as a transfer to another position or an on-the-job accommodation. While an employee is not required to accept a reasonable accommodation in lieu of taking FMLA leave, the FMLA does not prevent the employee from accepting, voluntarily and without coercion, an accommodation. WHD Field Operations Handbook 39j07. And by following this practice, you will have satisfied potential simultaneous ADA obligations to engage in the interactive process. And you just might be surprised – some employees actually would prefer to keep working but didn't know they had options.
- If a reduced schedule is approved, be alert for circumstances that justify recertification. Employers can sometimes require recertification before the expiration of the current cert, such as when circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of the absence, the nature or severity of the illness, complications) or if you receive information that casts doubt upon the employee's stated reason for the absence or the continuing validity of the certification. Watch and listen for information that might support recertification, such as reports or observation of activities by the employee that are inconsistent with needing a no-overtime schedule due to the reported serious health condition. However, be sure any actions you take are based on a good faith belief in the accuracy of your information.
Matrix Can Help!
Matrix offers integrated leave management services including FMLA leaves and ADA solutions. We have robust FMLA recertification and second & third opinion processes. We can launch these processes when supporting information comes to our attention directly or via our employer-clients. For more information, please contact your Matrix or Reliance Standard account manager, or reach us at [email protected].