FMLA Intermittent Leave Used to Reduce Workday


All Employers Subject to the FMLA


February 9, 2023



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Quick Look

  • Employees may use intermittent FMLA to work a reduced number of hours per day (or week) for the duration of their leave entitlement.
  • When both FMLA and ADA apply, the employee must receive the most beneficial protections.
  • FMLA entitlement is 12 workweeks and is measured based on the regularly scheduled hours in a workweek.


The Wage and Hour Division of the U.S. Department of Labor recently issued an Opinion Letter addressing whether an employee may use intermittent Family and Medical Leave Act (FMLA) leave to work a reduced number of hours per day (or week) for the duration of their leave entitlement. The inquiry indicated that employees were required to work more than eight hours per day and working overtime was not optional.

The Opinion letter stated that where an employee is unable to work more than eight hours in a regularly scheduled day because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.

The Opinion Letter highlighted the differences between the FMLA and the Americans with Disabilities Act (ADA), but acknowledged that an employee may be entitled to invoke the protections of both laws simultaneously. Where an employee qualifies under both the FMLA and ADA, requirements from both laws must be observed and applied in a manner that assures the most beneficial rights and protection to the employee.

Finally, the Opinion Letter reiterated FMLA entitlement for employees who are regularly scheduled to work more than eight hours per day. FMLA provides that an employee is entitled to 12 workweeks of leave per year. If an employee is regularly scheduled to work more than 40 hours per week, they are entitled to more than 480 hours of FMLA per 12-month period.


Action Items

  1. Review the Opinion Letter here.
  2. Have FMLA and ADA policies reviewed for compliance.
  3. Have appropriate personnel trained on FMLA eligibility and entitlement.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase