On February 9, 2023, the Wage and Hour Division of the United States Department of Labor released an opinion letter clarifying that employees can take leave under the Family and Medical Leave Act (“FMLA”) in increments, including increments that are less than a full workday.

FMLA protects the right of eligible employees to take unpaid, job-protected leaves of absence for up to 12 workweeks in a 12-month period. Upon completion of their leave, employees are entitled to reinstatement to their same job, or to one that is virtually identical.

FMLA leave can be used when an employee has a serious health condition that makes the employee unable to perform the essential functions of their job, but can also be used to care for the employee’s spouse, child, or parent who has a serious health condition or upon the birth of a child or placement with employee of a child for adoption of foster care to care for the child within one year of birth or placement.

The Department of Labor clarified that employees can access FMLA leave in smaller than one day increments, if the employer permits employees to take other kinds of leave, such as sick or vacation leave, in smaller increments. For example, eligible employees who are regularly scheduled to work a shift that exceeds 8 hours, may be permitted to limit their workday to 8 hours under FMLA. The remaining hours of their workday would be deducted from their allowable FMLA time. In theory, eligible employees who never exceed their allotted FMLA time may be able to reduce their hours indefinitely.

In calculating an employee’s “workweek,” the proper calculation is based on the employee’s regularly scheduled hours as opposed to a generic 40-hour workweek. Therefore, an employee who regularly works 60-hour work weeks is entitled to 720 hours of FMLA leave in a 12-month period.

The Department of Labor emphasizes that the protections of FMLA and the Americans with Disabilities Act (“ADA”) are separate from each other and apply to different, but sometimes overlapping, groups of employees. The protections of FMLA and the ADA may be invoked simultaneously.