FMLA could entitle employees to permanent part-time work | Parker Poe Adams & Bernstein LLP

For many employers, the intermittent leave provisions of the Family and Medical Leave Act present the most difficult challenges in providing leave entitlements while performing necessary job duties. Many companies experience situations in which employees request FMLA leave for unforeseeable illnesses such as migraines. Although accommodating these periodic absences can be frustrating, some employees may be eligible to have their position permanently restructured to part-time based on intermittent FMLA leave rights.

In this scenario, the employee provides a medical certificate stating that they are unable to work a full shift or do overtime due to a persistent serious health condition. The employee requests temporary leave in the form of reduced daily or weekly working hours. If the employee continues to work 1,250 hours per year and does not exhaust the 12-week FMLA entitlement, this short-term arrangement becomes permanent part-time employment. Under the FMLA, the employee continues to be entitled to group health insurance coverage even if the reduction in hours would otherwise render the employee ineligible for these or other benefits.

In a comment letter seeking clarification on this issue, the Department of Labor confirmed the use of intermittent FMLA leave to shorten an employee’s regular work schedule. Because FMLA leave is an entitlement, the employer cannot deny leave on the grounds that the position requires full-time employment. Under certain circumstances, the employer may transfer the employee to another position at the same rate of pay during the period of FMLA leave.

Employers faced with permanent job restructuring requests may wish to use the FMLA medical certification process to obtain a second (and possibly third) opinion on the employee’s ability to hold full-time employment. The employer may also require medical recertification every six months, even if there is no noticeable change in the employee’s condition. Ultimately, the FMLA gives some employees the legal right to request a change in their job to less than full-time status.

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