The Department of Labor (DOL) rang in the new year with some new guidance for employers covered by the Family and Medical Leave Act (FMLA). This time, the DOL addressed whether an employee’s travel to and from medical appointments qualified as FMLA-protected time.
Example Scenario
An employee who works from 9:00 a.m. to 5:00 p.m. each day requests time off to take her child—who has an FMLA-qualifying serious health condition—to therapy appointments once a week. The employee is typically out of the office from 3:00 p.m. to 5:00 p.m. to drive her child 30 minutes away to a specialist.
How much of that time is protected by the FMLA? Is the hour-long car ride also FMLA-protected? According to the DOL, yes, travel time to and from medical appointments will often be protected by the FMLA.
Analyzing the DOL’s Answer
Once again, the DOL unpacked the statutory language piece-by-piece to explain how employers should analyze the travel problem.
First, the FMLA entitles eligible employees to use leave because of the employee’s serious health condition or to provide care for a covered family member with a serious health condition. For an employee’s own serious health condition, the FMLA entitles the employee to protected time to receive medical treatments for the illness or injury. Employees may also take leave “to care for” certain family members if the family member has a serious health condition or is a covered servicemember with a serious injury or illness.
Next, the FMLA defines a “serious health condition” as one that includes not only immediate limitations and effects of the condition but also one that requires either “inpatient care” or “continuing treatment by a healthcare provider.” Thus, FMLA leave is appropriately used for any time spent in medical appointments associated with the condition.
The DOL acknowledged that travel to and from the medical provider’s location is often a necessary component of this care and treatment, and the FMLA does not require or expect any information about travel time to be reflected in the employee’s medical certification for leave. Likewise, travel to and from medical appointments meets the “care for” requirement needed for employees taking FMLA leave to care for a covered family member.
As always, however, the FMLA is riddled with nuance. When an employee requests FMLA leave to care for a family member, and travel time is included within the request, the key inquiry should be whether the employee’s travel is necessarily intertwined with the family member’s need for treatment or care. Travel time for transporting a family member to medical appointments would be protected because it clearly meets the “provision of care” requirement. Travel time to simply visit an ill family member, without more, will not generally be FMLA-protected.
Unrelated Activities
For employers concerned about boundary-pushing FMLA users, take solace: Travel time to obtain care and treatment may be protected, but the FMLA does not protect misuse of that leave. In other words, travel time that is spent on unrelated activities that are not attributable to the serious health condition will not be protected. And, of course, you may request that intermittent FMLA users make a reasonable effort to schedule treatment at a time that is less disruptive to the employer’s operations.
Returning to the hypothetical above, here is how the travel rule is applied:
- The employee leaves work to drive to school to get her child, picks him up, takes him to his appointment, and then drives home. Typically, this trip takes two hours from the time she leaves work at 3:00 p.m. until they arrive home at 5:00 p.m. The entirety of this trip is FMLA-protected and counts against her FMLA leave entitlement.
- One day, the employee requests three hours off of work to take her child to his appointment. After the appointment ends, she takes her child to the grocery store and to complete other errands. The two hours ordinarily taken for the therapy appointment is FMLA-protected, but the additional time spent on activities unrelated to the serious health condition are not FMLA-protected and would not count against her entitlement.
Takeaway
In sum, travel to or from a medical appointment for a serious health condition will be protected by the FMLA, regardless of whether the medical certification indicates the need for, or time required, of such travel. The DOL’s letter cautions employers against requesting certification from a medical provider about the need for travel time because it exceeds the permissible scope of inquiry and could risk an FMLA interference claim.
Shelby Merinar is an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia, and can be reached at 304-598-8176 or shelby.hicks-merinar@steptoe-johnson.com.