34 SEPTEMBER / OCTOBER 2023 Debra A. Mastrian Partner Amundsen Davis LLC DMastrian@ AmundsenDavisLaw. com Amundsen Davis LLC is a Diamond Associate Member of the Indiana Bankers Association. HUMAN RESOURCES Important FMLA Guidance The Department of Labor issued public opinion letters and field assistance bulletins this year dealing with various matters pertaining to the Family Medical Leave Act. The FMLA is a federal law that was passed in 1993 then revised in 2009 and again in recent years. Generally, the FMLA covers employers with 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Employees who have worked for the employer for at least 12 months and at least 1,250 hours during the prior 12 months (as of the date the requested leave is to start) at a location where the employer has 50 or more employees within a 75 mile radius may be eligible to take up to 12 workweeks of unpaid job-protected leave in a 12-month period.* Employers must maintain any pre-existing group health insurance benefits for an employee who is on FMLA leave and must (except for in certain circumstances for a “key employee”) restore the employee to the same or an equivalent position with equivalent benefits, pay and other terms and conditions of employment after the leave. FMLA leave does not have to be continuous. In certain circumstances, employees are entitled to take “intermittent leave” (leave taken in separate blocks of time for a single qualifying reason due to an illness or injury, including for medical appointments, therapy or treatment) or on a “reduced leave schedule” (reducing an employee’s normal weekly or daily schedule). In February, the DOL issued a public opinion letter in response to an employer’s request for an opinion concerning whether an employee who normally works in excess of eight hours each workday is entitled to a reduced schedule for an indefinite period of time. The DOL opined that if an employee has a chronic serious health condition and a certification from their health care provider stating that the employee requires a reduced scheduled because of that condition, the employee is entitled to a reduced schedule leave for so long as the employee has FMLA leave available. In the scenario where an employee is only able to work eight hours a day, the employee would work those hours and then take intermittent FMLA leave for the remaining required hours (including any mandatory overtime). This could result in an indefinite reduced schedule if the employee has not exhausted FMLA leave by the time the 12-month accrual period renews. The DOL also reminded employers that FMLA regulations use the term “workweek” and not a defined number of hours or workdays. Workweek is defined as the employee’s normal schedule (hours per week) prior to the start of the leave. Thus, when calculating how much intermittent leave an employee is entitled to, employers must use the actual hours an employee works on average each week, and not simply assume it is 480 hours (12 weeks multiplied by 40 hours per week) for the 12-month period. An employee who is regularly scheduled to work more than 40 hours per week is entitled to more than 480 hours of FMLA leave per 12-month period. The DOL gave an example of an employee who typically works 50 hours per week would be entitled to 600 hours of FMLA leave in a 12-month period. If an employee’s schedule varies greatly from week to week such that the employer cannot determine with any certainty how many hours the employee would otherwise have worked, then the employer must use a weekly average of the hours scheduled during the prior 12-month period (before the start of the leave). The DOL also issued a field assistance bulletin in February, providing guidance on how to apply eligibility rules under the FMLA when employees work remotely. Employees who work remotely are eligible for FMLA leave on the same basis as employees who work at an office location. All hours worked (whether at home, in the office or at another location) are counted for purposes of the 1,250-hour eligibility requirement. It is important that accurate time records are kept for employees who work remotely, just like employees who work in office locations, because the burden is on an employer if the employee claims they have met
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