DOL Gives Employers Clear Answer: FMLA Covers Travel Time for Medical Visits
The United States Department of Labor (DOL) resolved a long-standing question about whether leave under the Family and Medical Leave Act (FMLA) applies to time spent by an employee traveling to and from approved medical appointments. According to the DOL’s latest opinion letter, the answer is yes.
The FMLA requires covered employers to provide eligible employees with up to 12 weeks of leave during any 12-month period if the employee has a serious health condition that makes the employee unable to perform the functions of the employee’s position. An employee may also use FMLA leave to care for certain family members who have a serious health condition.
In either case, leave may be taken intermittently if medically necessary. Intermittent leave includes leave taken in connection with medical appointments associated with the serious health condition. It is well settled that such leave applies to the time spent in the actual appointment. However, neither the FMLA statute itself nor the regulations address if intermittent leave applies to the time it takes to drive to and from the appointment. Case law on the issue is sparse and, prior to the opinion letter, the DOL had not provided any guidance on the issue.
In determining that the travel time is FMLA-protected leave, the DOL explained that “[p]art and parcel of obtaining care and continuing treatment from a medical provider may require the employee to travel to the provider’s location.” As a result, when an eligible employee travels to and from a health provider for a medical appointment regarding the employee’s serious health condition or the serious health condition of a family member, the employee may take FMLA leave for not only the actual appointment, but also the time spent traveling to and from the appointment.
Nevertheless, the DOL made clear that the covered leave is limited to travel related to the medical appointment. The FMLA does not protect misuse of such leave. Specifically, the FMLA does not cover travel time to or from, or stops for, unrelated activities. For example, if an eligible employee stops for lunch after a medical appointment before returning to work, the time spent traveling to the lunch venue, as well as the time spent eating lunch, would not be covered by the FMLA.
The opinion letter also addresses the medical certification needed to enable an employee to use FMLA-protected leave in connection with travel to and from medical appointments. A covered employer may require that an employee submit a medical certification to support the need for FMLA leave. The statute addresses information that must be included in a sufficient medical certification, such as the date on which the serious health condition commenced, the probable duration of the condition and the appropriate medical facts within the knowledge of the health care provider regarding the condition.
For purposes of covering travel time, the DOL indicated that a medical certification is sufficient if it does not include information regarding travel time necessary for a patient to get to and from a needed appointment, as the health care provider’s knowledge does not extend that far.
It is important to remember that, for planned medical treatment, such as medical appointments, employees are required to consult with employers and try to schedule the appointment at a time that minimizes disruptions, with scheduling subject to health care provider approval.
For instance, if it takes the employee an hour to get to and from a medical appointment, and the employee’s work schedule is 9 a.m. to 5 p.m., the employee’s medical appointment could be scheduled for 4:30 p.m. Assuming the appointment is 30 minutes, only the travel time to the appointment and the actual appointment time (a total of 1.5 hours) would be covered by the FMLA, as the hourlong drive home would be after the end of the employee’s workday.
Please contact Jess Huffman or any member of the Phelps labor and employment team if you have questions or need advice.
