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Many jobs require regular overtime or some minimum number of hours per day or week. If working a certain number of hours amounts to an essential function of a job, employees or applicants who cannot work those hours are generally unqualified. Even under the ADA, excusing a disabled individual from regularly working the hours essential to a particular job may not be required as a reasonable accommodation. But what if the “accommodation” is leave under the FMLA? The U.S. Department of Labor was asked if intermittent FMLA leave can be taken on an ongoing basis, to indefinitely excuse an employee from working the essential hours of a job. Employers are not going to be happy with the DOL’s answer.

In a recent opinion letter, the DOL was asked its opinion on scenarios involving jobs that require at least 40 hours per week, regular OT, or over 8 hours per day. The question assumed these hours amounted to an essential job function the ADA would not require an employer to modify, long-term, to accommodate a disability. Could a doctor permanently excuse an employee from working the hours required of the job by certifying 8 hours of FMLA per week, indefinitely? In this scenario the employee would (a) never exhaust 12 weeks of leave in a year, nor (b) ever fulfill an essential function of the job. In the DOL’s view, a serious health condition that qualifies for intermittent FMLA leave can be used indefinitely to trump both the ADA and the employer’s job requirements. This opinion leaves employers few options. The “key employee” exception to FMLA is extremely limited. Second and third medical opinions mentioned in DOL regulations are costly and rarely prove useful. The best hope for employers may lie in the courts. A small but growing number of appellate courts have refused to adopt the DOL’s interpretation that the FMLA can be used to force employers to employ individuals in a position they can never fulfill due to medical restrictions involving never-ending intermittent leave.

Unfortunately, this recent DOL Opinion Letter leaves employers in a catch-22. Ignore the DOL and potentially face an investigation, or litigation against a federal agency. Allow healthcare providers to in effect modify essential job requirements, and it can cripple a business if it becomes wide-spread. Though not without risk, employers in Midwest states can find support in existing opinions of the Seventh and Eighth Circuit Courts of Appeals. These are complicated decisions, but the stakes may warrant a deep dive into the nuances and potential limits of intermittent FMLA leave. The stakes are about to increase as leaves become paid under local, state, and eventually federal law.

Click here to see the DOL Opinion Letter.


James Sherman is the author of this article. Any questions or further interest in issues involving intermittent FMLA or mitigating its impact on essential job requirements, email:, or call (952) 746-1700.

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