2018 Wage and Hour Opinion Letters Offer Helpful FMLA Guidance

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Posted on 12/21/2018 at 10:00 AM by Mike Staebell

The Wage and Hour Watch reported on the reintroduction of Administrator’s Opinion Letters by DOL’s Wage and Hour Division (WHD) earlier this year.   Opinion Letters are WHD’s responses to fact-specific questions submitted by employers and employee organizations about aspects of FLSA and FMLA compliance that are not addressed in the statutes and regulations.  WHD publishes opinion letters on its website, keeping the names of requestors confidential.  In this way, all employers and employees may benefit from the guidance, not just those who submitted questions. 

This post reviews some of the WHD’s 2018 Opinion Letters, each of which provides helpful guidance on confusing or novel FMLA issues. 

FLSA 2018-19

This guidance addresses both FLSA and FMLA compliance, and it was covered in detail in the May 2018 post on this blog.  I include it again here, because its practical guidance makes it worth a quick review.  In this Opinion Letter, the WHD states that an FMLA-eligible employee is not due compensation for his or her short rest breaks when those breaks are taken for FMLA-qualifying reasons.  This is an exception to the FLSA requirement that short rest breaks of less than 20 minutes are not required, but if granted, must be paid time.  The letter adds that employees who take FMLA-protected breaks must receive as many compensable rest breaks as their coworkers.  For example, if company policy provides two paid 15-minute breaks during an eight-hour shift, but an employee has approved FMLA for four 15-minute breaks during an eight-hour shift, two of this employee’s breaks must be paid, but the two extra breaks do not have to be paid.  This opinion letter does not address how short breaks are to be treated for employees who have FMLA-qualifying medical conditions but are not eligible for FMLA leave.  Nor does it address how short breaks are to be treated for employees who are not eligible for FMLA leave but need the breaks as a reasonable accommodation for a disability or for a religious conflict.  

FMLA 2018-1-A

This opinion letter addresses a typical question by employers’ that utilize the “12-month roll-back” method of calculating the 12 weeks in 12-months FMLA period, and that have attendance point systems. The employer requesting the opinion was freezing the aging of accrued attendance points while employees were on a continuous FMLA leave, which meant those points stayed on employees’ attendance records longer than their usual 12-month life under the policy.  The employer asked whether this policy could be construed as punitive or discriminatory against those using FMLA leave.

In response, WHD opined that under this employer’s policy, an employee neither loses a benefit that accrued prior to taking the FMLA leave nor accrues any additional benefit to which he or she would not otherwise be entitled.  WHD’s longstanding position is that such practices do not violate the FMLA, as long as employees on other types of leave receive the same treatment.  Other types of leave might include vacation, sick leave, PTO, leave without pay, etc.  For example:  If the employer counts non-FMLA sick leave as active service under the attendance policy—meaning the employer counts non-FMLA sick leave days toward the twelve months necessary to remove absenteeism points—then the employer may be unlawfully discriminating under the FMLA by freezing the points of employees who take FMLA leave.  A bigger-picture takeaway from this letter is that employers must ensure that FMLA leave is not treated differently from other types of leave, especially when it comes to attendance point systems.

FMLA 2018-2-A

This opinion letter addresses the question of whether voluntary organ-donation surgery and resulting post-operative recovery may qualify as a serious health condition under the Family and Medical Leave Act.   WHD responds that this type of surgery may be FMLA protected when it involves either “inpatient care” under 29 C.F.R. § 825.114 or “continuing treatment” under 29 C.F.R. § 825.115 of the FMLA regulations.  Therefore, organ donation surgery and post-recovery treatments for it would qualify as a serious medical condition whenever it results in an overnight stay in a hospital, or when the procedure results in work absences due to an incapacity of more than three consecutive calendar days accompanied by continuing treatment by a health care provider.   


Originally issued by the Bush-era WHD in 2009, this Opinion Letter was rescinded during the Obama administration and reissued in January 2018, along with 16 others.  The requestor asked WHD about a 1999 opinion letter that seemed to imply that employees have two business days to provide notice that their leave was FMLA-qualifying, regardless of whether they could have practicably provided notice sooner (FMLA-101, January 15, 1999).  Under that interpretation, employers would violate the FMLA if they disciplined employees under no call/no show or call-in policy violations, prior to the end of the two business days.

WHD responded thusly:  “[A]s stated in the final rule, where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced. To the degree that Wage and Hour Opinion Letter FMLA-101 has been interpreted to create a flat ’two-day rule,’ the Department is hereby rescinding it.” (emphasis mine)   

The Opinion Letter goes on to discuss the example the questioner posed:  An employer has a policy requiring employees to call in one hour prior to their shift to report absences.  An employee is absent on Tuesday and Wednesday, does not call in on either day, but provides notice of her need for FMLA leave when she returns to work on Thursday.  Under this circumstance, WHD states, “unless unusual circumstances prevented the employee from providing notice [of the absences] consistent with the employer’s policy, the employer may deny FMLA leave for the absence.”

The key takeaway from this opinion letter is that employers may delay or deny FMLA leave, or impose discipline, for failure to follow the employer’s call-in policies.  This assumes of course, that the policies apply equally to all forms of leave, and do not single out FMLA leave for more burdensome requirements.

Any employer considering discipline under these circumstances should clearly tie the discipline directly to the failure to follow company policy, and do so in a writing that advises the employee their request or use of FMLA leave had nothing to do with the disciplinary action.  

These Opinion Letters offer practical guidance in administering FMLA policies.  However, they cannot address every question.  In light of the uncertainties present in many FMLA situations, particularly those regarding discipline or termination, be sure to speak with an employment attorney familiar with the FMLA regulations, local statutes, and your specific situation before making FMLA decisions.   Employees who are disciplined when FMLA is involved often allege the discipline violates the law.  All it takes is one phone call by an employee to the WHD or an attorney, and you may find yourself defending your actions, often at significant cost.


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