Earlier this year, the Department of Labor (DOL) issued opinion letters offering employers guidance regarding certain family and medical leave matters under the Family and Medical Leave Act (FMLA). As with other opinion letters, they are nonbinding on the courts, but they serve as valuable insight to employers on the DOL’s expectations regarding an employer’s implementation of an employee’s FMLA leave. Oftentimes, employers make errors in calculating an employee’s FMLA usage. Pay close attention to make sure your workplace is compliant.
Clarification on FMLA Coverage for Medical Appointment Travel
The DOL recently clarified that employees may use FMLA-protected leave for time spent traveling to and from qualifying medical appointments related to their own serious health condition and to care for covered family members with a serious health condition. Travel time, the DOL explained, is protected FMLA leave, regardless of whether the medical certification estimates or addresses travel time as part of the need for intermittent leave.
To assist employers in understanding this clarification, the DOL reiterated the core FMLA principle: Eligible employees of covered employers may take up to 12 workweeks of leave in a 12-month period for their own serious health condition or to care for certain family members, including on an intermittent or reduced-schedule basis when medically necessary. Time spent attending medical appointments to diagnose, monitor, address, or treat a serious health condition is protected, and the necessary travel to and from those appointments is part of that protected leave. By contrast, travel time unrelated to the serious health condition—such as adding unrelated errands to a treatment trip—is not FMLA-protected.
The opinion letter offered practical illustrations. An employee traveling to dialysis near the end of the workday may count travel and treatment time as FMLA leave. An employee using intermittent leave to drive a parent to biweekly treatments may count the variable time for travel, waiting, and assistance as protected leave. Time spent traveling for non-care activities, however—even if the family member has a chronic condition—is not protected leave.
On medical certifications, the DOL emphasized scope and sufficiency. Certifications must provide medical facts within the provider’s knowledge, but providers aren’t expected to estimate travel time, which is outside their knowledge. Accordingly, a certification may be complete and valid without any reference to travel time.
Bottom line: Employers should treat necessary travel to and from qualifying medical appointments as FMLA leave, while excluding unrelated travel or activities. Interference with employees’ use of such leave remains prohibited and would subject employers to liability.
Calculating FMLA Usage During Workplace Closure
In Opinion Letter FMLA2026-1, the DOL addressed how work closures of less than a full week affect an employee’s use of leave under the FMLA. The letter noted that when an employer closes for part of a week during which an employee is using less than a full week of FMLA leave, the closure period isn’t counted as FMLA leave unless the employee was scheduled and expected to work during that time and actually uses FMLA leave for those hours or days. By contrast, if an employee is taking a full workweek of FMLA leave, the entire week counts as FMLA leave even if the workplace is closed for one or more days within that week.
Grounding its analysis in the FMLA’s “workweeks of leave” framework and proportional counting rules for intermittent or reduced schedule leave, the DOL explained that employers may not reduce an employee’s entitlement beyond the leave actually taken when the employee is taking less than a full workweek. Accordingly, if an employee who is approved for intermittent FMLA leave isn’t required to report because the workplace is closed for part of the week, the employer shouldn’t deduct that closure time from the employee’s FMLA balance. The DOL proffered this example: An employee who typically uses FMLA leave on Tuesday afternoons for physical therapy wouldn’t have FMLA leave deducted if the workplace is closed all day Tuesday and the employee wouldn’t be required to work.
The takeaway is straightforward: Count FMLA leave proportionally to the actual workweek for intermittent or reduced-schedule leave, and treat full-week FMLA as a full week notwithstanding partial-week workplace closures that result from holidays or inclement weatFher.
Jodi R. Bohr is a shareholder with Milligan Lawless, P.C., and a contributor to Arizona Employment Law Letter. She practices employment and labor law, with an emphasis on counseling employers on HR matters, litigation, and workplace investigations. She may be reached at jodi@milliganlawless.com or 602-792-3549.