The federal Family and Medical Leave Act (FMLA) has long allowed eligible employees to take leave to attend qualifying medical appointments. Earlier this year, the federal Department of Labor’s (DOL) Wage and Hour Division issued an Opinion Letter confirming that employees may use FMLA leave for both the medical appointment and the time reasonably necessary to travel to and from that medical appointment.
The DOL Opinion Letter addressed a question about an employee requesting intermittent FMLA leave to attend medical appointments for their own serious health condition. The employee provided their employer with a medical certification which indicated that the medical appointments would occur once per month and last for 45 minutes.
The medical certification lacked any indication about the amount of travel time required to attend the medical appointments, but the employee told their employer that they needed one hour to travel to or from their medical appointments.
The DOL concluded that this travel time would also qualify for FMLA leave.
Generally speaking, the FMLA provides eligible employees with up to 12 work weeks of unpaid, job-protected leave in a 12-month period for the employee’s own serious health condition or to care for a qualifying family member, such as a parent, child, or spouse, with a serious health condition.
A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider.
The FMLA provides job-protected leave for medical appointments, such as those related to the diagnosis, monitoring, addressing, or treating of an employee’s or their qualifying family member’s serious health condition.
In its Opinion Letter, the DOL reasoned that since FMLA-qualifying medical treatment often cannot occur without travel to the medical provider’s location, such travel must therefore be considered “part and parcel” of that medical treatment. Accordingly, the DOL concluded that such travel time would also be designated as FMLA leave.
The DOL Opinion Letter provided an example where the employee’s 30 minutes of travel time to a medical appointment, and the time at the medical appointment, during the employee’s scheduled workday qualified as FMLA leave.
Not only does this example illustrate the topic of travel time, but it also serves as a reminder to employers that even though the total amount of FMLA leave is stated in workweeks, employers should not forget that FMLA leave can be taken in smaller increments.
Employers should have procedures in place for providing and tracking an employee’s use of FMLA leave, even leave taken in smaller time increments.
In the initial question presented to the DOL, the medical certification lacked any mention of travel time.
The DOL explained that a medical certification need not explicitly indicate the amount of travel time since the FMLA does not require a health care provider to furnish such information. Employers should not deny FMLA leave requests, or leave for the eligible travel time, just because the travel time is not explicitly indicated on a medical certification.
The DOL also provided helpful guidance for minimizing the potential misuse of FMLA leave for unrelated travel time. The Opinion Letter indicated that only the portion of the employee’s absence which is attributable to the qualifying medical treatment and the associated travel would be covered FMLA leave.
The DOL stated that FMLA-protected leave for travel time does not include travel to or from, or stops for, activities unrelated to obtaining medical care and treatment. The Opinion Letter provided a hypothetical example of a parent ineligible for FMLA leave for the travel time to accompany their child, who has a chronic serous health condition but does not need care, during a school band trip since that leave is unrelated to the child’s serious health condition.
While opinion letters do not carry precedential weight like statutes or regulations, they nevertheless may be a helpful resource for HR professionals and employers.
The Family and Medical Leave Act provides job-protected leave for medical appointments, such as those related to the diagnosis, monitoring, addressing, or treating of an employee’s or their qualifying family member’s serious health condition. Following this recent opinion letter, employers should consider evaluating their FMLA leave policies and procedures regarding travel to and from medical appointments. California employers should also keep in mind that the DOL Opinion Letter only addressed travel to medical appointments with respect to the federal FMLA, and made no mention of the California Family Rights Act (“CFRA”).
While the federal FMLA and the CFRA both provide job-protected leave and are similar in many respects, they are also different in others. Employers should consult with their HR department and/or legal counsel should they have questions about providing employees with leave related to travel to qualifying medical appointments.
Bradley Levang is an attorney with the Fenton & Keller law firm. This article is intended to address topics of general interest and should not be construed as legal advice. For more information, please visit www.fentonkeller.com.