Summary: The U.S. Department of Labor (DOL), under its Wage and Hour Division (WHD), recently released several opinion letters (WHD Letters) providing clarifying guidance with respect to certain aspects of leave under the federal Family and Medical Leave Act (FMLA), including those related to travel time for medical appointments, school closures for inclement weather, and intermittent FMLA leave calculations for shift workers with overtime hours.
Read on for more information and employer considerations.
FMLA Background
The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave for an eligible employee’s own serious health condition or to care for the eligible employee's family member (i.e., spouse, child, or parent) with a serious health condition.
Eligible employees may also take up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness, if the employee is the spouse, child, parent, or next of kin of the servicemember. FMLA leave is also available for eligible employees to take time off work for the birth, adoption, or foster care placement of a child and to bond with the child.
Employees have the right to take FMLA leave all at once, or, when medically necessary, in separate blocks of time (also known as intermittent leave) or by reducing the time they work each day or week.
Eligible Employees: Employees are eligible for FMLA leave if they:
- work for a covered employer for at least 12 months,
- have at least 1,250 hours of service for the employer during the 12 months before the leave, and
- work at a location where the employer has at least 50 employees within 75 miles of that worksite location.
Covered Employers: Covered employers under the FMLA include:
- Private-sector employers with 50 or more employees during 20 or more calendar workweeks[1] in the current or previous calendar year (including joint employers or successors in interest to another covered employer),
- Public agencies, including federal, state, and local governments (regardless of the number of employees), and
- Local educational agencies, including public and private elementary and secondary schools and public school boards (regardless of the number of employees)
Serious Health Condition is defined under the FMLA as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider. See the WHD Fact Sheet webpage here for more details regarding a "serious health condition" under the FMLA.
WHD Letters
Travel Time for Medical Appointments
Background: This WHD Letter was released on January 5, 2026, in response to a request for clarification with respect to whether FMLA leave may be used for time spent traveling to or from medical appointments. The requesting organization stated that they have eligible employees planning to take intermittent or reduced-schedule FMLA leave to attend medical appointments related to their own (or their qualifying family member’s) serious health condition in various locations, which are “some distance” from their homes or workplaces.
Travel Time to/from Medical Appointments: This WHD Letter clarifies that when an eligible employee travels to or from a health care provider for a medical appointment related to the employee’s own serious health condition or that of a covered family member, they may take FMLA leave not only for the actual appointment, but also for the time traveling to or from the appointment.
Medical Certification: A covered employer may require that an employee submit a medical certification to support the employee’s need for FMLA leave due to the employee’s or the employee’s family member’s serious health condition. See the WHD Fact Sheet webpage here for more details regarding medical certifications under the FMLA.
For purposes of travel time under the FMLA, this WHD Letter states that “a healthcare provider’s knowledge does not extend to the travel time necessary for a patient to get to and return from a needed appointment.” As a result, a health care provider is not required to provide an estimate of an employee’s travel time to or from an appointment in the medical certification. In fact, the WHD Letter emphasizes that “a medical certification need not include any information regarding travel time to be complete and valid under the FMLA.”
Unrelated Activities: This WHD Letter also notes that while travel time to and from medical appointments is covered under the FMLA to obtain care for an employee’s (or their family member’s) own serious health condition, it does not include travel to or from, or even stops for, activities unrelated to the medical appointment.
The following medical appointment travel time examples are provided in this WHD Letter for clarity:
- Grace is an eligible employee who works 9:00 a.m. to 5:00 p.m. each day. She requests intermittent leave to transport herself to or from a medical facility to complete her dialysis treatment. Grace discussed with her employer and was able to schedule the appointment at 4 p.m. each day to minimize the impact to her employer’s operations. The 30 minutes of travel to her appointment qualifies for FMLA leave, along with any time that elapses while Grace receives the treatment and would need leave from work to reach the end of her scheduled workday of 5:00 pm.
- David is an eligible employee who requests intermittent leave to take his mother to her biweekly doctor’s appointments for the treatment of a serious health condition. David provided a medical certification to his employer explaining that his mother must attend an estimated 30-minute appointment every other week. Every other week, David leaves his jobsite, drives to his mother’s house, picks her up, drives her to her appointment, and drives her home before returning to work. The amount of time David needs to travel, wait for his mother’s appointment to begin and end, and assist his mother when she returns home varies. David typically uses two to 2 ½ hours every other week for the care of his mother. This leave is FMLA-protected and counts against his FMLA entitlement.
- Rick requests leave from work to accompany his child on his child's high school band trip. His child has a chronic serious health condition but does not have any episodes of incapacity or need for care during the trip. Any time Rick takes off work to travel on the band trip would not be covered by the FMLA because the leave is unrelated to his child’s serious health condition.
- Rhoda is an eligible employee who takes intermittent leave on Friday afternoons for 2 hours to go to physical therapy for her serious health condition. Rhoda leaves work, travels to the physical therapy center, attends physical therapy, and returns to work most days. One Friday, she requests leave for 3 hours, including an extra hour in order to go by the library and do grocery shopping after her physical therapy. The 2 hours she needs for her physical therapy is FMLA-protected. However, the time Rhoda spends in the activities not related to her serious health condition (i.e., going to the library and grocery shopping) would not be FMLA-protected leave and would not count against her entitlement.
School Closures of Less Than a Full Week
Background: This WHD Letter was also released on January 5, 2026, in response to a request for clarification with respect to how a school closure of less than a full week impacts the amount of leave a school employee uses under the FMLA, specifically when a school closes for less than a full week due to inclement weather.
This WHD Letter clarifies that when a school closes for part of a week during which an employee uses less than a full week of FMLA leave, the period during which the school is closed is not counted as FMLA leave and such time during the school closure should not be deducted from the employee’s FMLA leave entitlement, unless the employee was scheduled and expected to work during the period and uses FMLA leave for that time.
However, when a school closes for part of the week during which an employee is using a full week of FMLA leave, the entire week is counted as FMLA leave and the employer may deduct a full week’s worth of leave from the employee’s FMLA leave entitlement.
The guidance within this WHD Letter aligns with DOL guidance from 2023, clarifying how FMLA leave interacts with holidays. See the Risk Strategies article here for more details.[2]
The following school closure examples are provided in this WHD Letter for clarity:
- If an eligible employee needs FMLA leave each Tuesday afternoon for physical therapy, but the school is closed all day on Tuesday due to inclement weather and the employee is not required to report for duty, the employer school should not deduct time for that day from the employee’s FMLA entitlement.
- If an eligible employee was on FMLA leave for Monday through Friday of a week, but the school is closed on Tuesday, the employee would use a full week of FMLA leave despite not being required to report to work on Tuesday.
This WHD Letter also confirms that the following do not affect the amount of FMLA leave an employee uses:
- whether the school closure was planned or unplanned,
- the specific reasons for the temporary school closure, or
- whether the school schedules a required “make-up” day in the future.[3]
- An employee’s ability to take FMLA leave on a “make up” day must be evaluated independently of the day that “make up” day replaces. Generally, if the employee is eligible, has a qualifying leave need, and has an unused leave entitlement prior to the scheduled “make up” day, the employee may use FMLA leave on that scheduled day.
Intermittent Leave Calculation for Shift Workers With Overtime
Background: In another WHD Letter released in September 2025, the DOL clarified how to calculate intermittent or reduced-schedule leave under the FMLA, particularly for correctional law enforcement employees working fixed 12-hour shifts plus mandatory and voluntary overtime hours.
When an employee takes intermittent or reduced-schedule FMLA leave, the FMLA regulations permit employers to convert the employee’s workweeks into hours to calculate the employee’s FMLA leave entitlement and the amount of leave taken.[4] For employees who work a standard 40-hour per week schedule, this results in a 480-hour FMLA entitlement per benefit year.
This WHD Letter confirms that:
- Employers may calculate an employee’s FMLA leave entitlement by converting the 12-week FMLA benefit to an hourly equivalent, based on the work time in an employee’s normal, actual workweek.
- The employee’s normal, actual workweek, including mandatory overtime, is counted for FMLA entitlement calculations.
- The employee’s voluntary overtime or voluntary additional hours are not counted in the FMLA entitlement calculation.
The following intermittent leave for shift worker calculation example is provided in this WHD Letter for clarity:
Mark is a correctional police officer who works a schedule that requires him to work 84 hours every two weeks, and is required to work what his employer classifies as mandatory overtime hours as part of this schedule. Additionally, Mark may volunteer for extra work above his scheduled hours. Mark’s employer considers his 12-workweek FMLA leave entitlement equivalent to 504 hours. The conversion is based on his actual schedule and does not include the availability of additional voluntary hours.
Mark has 504 hours of FMLA leave available when he requests 2.5 hours of leave to attend an appointment for an FMLA-qualifying serious health condition. Mark requests leave from 9:15 a.m. to 11:45 a.m. on a day on which he is scheduled to work during that time period. Mark’s employer approves Mark for 2.5 hours of FMLA leave and calculates that he has 501.5 hours of FMLA leave remaining available in the employer’s 12-month leave year.
The fact that Mark had the option to, but did not and was not required to, volunteer for additional hours in the workweek is not a factor in the calculation of how much FMLA leave he has available to use or how much FMLA leave he has used.
Employer Considerations
While these WHD Letters outlined above are generally limited to the specific facts presented, they do provide insightful and instructive guidance for employers navigating FMLA leave requests with similar fact patterns.
Employers are advised to confer with their leave consultants and employment/labor counsel to review and update, as necessary, their FMLA leave policies and practices in the wake of these recent WHD Letters.
Additionally, employers who outsource FMLA administration to a third-party vendor are advised to confirm their vendor is complying with the guidance detailed in these recent WHD Letters, as outlined above.
As a reminder, see below for other Risk Strategies articles detailing recent DOL guidance in connection with FMLA leave:
Finally, click here for a Risk Strategies article providing compliance guidance for employers regarding group health benefits continuation during FMLA leave.
Risk Strategies is here to help. Contact your Risk Strategies account team with any questions, or contact us directly here.
[1] Employees are employed each working day of the calendar week if they work any part of the week. The workweeks do not have to be consecutive.
[2] See 29 C.F.R. § 825.200(h).
[3] To satisfy the school’s instructional hour mandates imposed by the state. An employee’s ability to take FMLA leave on a “make up” day must be evaluated independently of the day that “make up” day replaces.
[4] See 29 CFR 825.205(b)(1).
