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Intermittent Family Leave Clarified in DOL Opinion Letter (1)

Aug. 8, 2019, 2:49 PMUpdated: Aug. 8, 2019, 6:24 PM

The Labor Department interprets federal law to allow family leave for a mother to attend special education committee meetings in one of three new opinion letters.

The employee can take intermittent, unpaid leave under the Family and Medical Leave Act because she’s attending the meetings to make care arrangements for a child with a serious health condition, the DOL’s Wage and Hour Division said.

The agency’s stance isn’t a “huge departure” from current law, but it does clarify an area of the FMLA that was less obvious to employers, said Sarah Platt, a shareholder with management firm Ogletree Deakins in Milwaukee.

Using intermittent FMLA leave to attend appointments for care isn’t unusual, she said. Going forward, however, this interpretation could be used to include non-medical services that might be part of an individualized education program or other care plan, said Platt, who specializes in FMLA, disability leave, and state laws.

In May, the DOL requested input on how to update regulations to “better protect and suit the needs of workers” and “reduce the administrative and compliance burdens on employers” in its unified regulatory agenda. Intermittent use of FMLA leave could be a change that satisfies the latter request, as piecemeal use of leave is “one of the most challenging issues for employers,” Platt said.

Overtime Pay, Worker Status

In another letter released Aug. 8, the division said that public employees who split time working for fire and police departments aren’t entitled to overtime pay.

In a third letter, the agency wrote that a county sheriff’s office can maintain the volunteer status of reserve deputies who also perform paid security work for third parties.

An opinion letter is an explanation of how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Anyone can request an opinion letter, though they generally are used by employers and their attorneys.

The letters are coveted as they represent the government’s official interpretation on whether a policy is in compliance with federal labor law. A letter also can be offered as a legal defense in some cases, including by individuals and businesses who didn’t request the letter but who replicate the fact pattern described in the letter.

The opinion letter process was revived in the Trump administration, after the Obama Labor Department discontinued the practice in favor of issuing more broadly applied administrator’s interpretations.

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com