FMLA-93 — Paid Administrative Leave Policy

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

February 6, 1998 FMLA-93

Dear
Name*,

Thank you for your letter concerning the Family and Medical Leave Act of 1993 (FMLA). I apologize that,
because of the volume of work associated with administering FMLA, we were not able to respond sooner
to your request.

You request reconsideration of a written response from our
Name* District Office concerning the
granting of paid administrative leave for physical fitness activities when an employee is on intermittent
FMLA leave on a reduced workweek schedule, i.e., every Monday to care for a relative. (We assume that
the relative in this case is either a spouse, parent, son or daughter, which are the family members
covered by FMLA.) Enclosed with your letter is Policy Issuance No. 29
, which provides that the immediate
supervisor “shall consider the needs of the Department’s business, including the assignments and
responsibilities of the employee” in approving an employee’s request for such administrative leave. The
administrative leave is limited to three one-half hour periods per week for an employee to participate in
structured physical fitness activity during the lunch hour. Approval can be granted in situations where the
request can be “reasonably accommodated.” Use of such leave may be suspended if there is “abuse or if
it is in the best interests of the Department.” Because of the discretionary nature of this leave, you argue
that the leave is not a “benefit” for FMLA leave purposes.

Section 101(5) of the FMLA defines employment benefits to include “all benefits provided or made
available to employees by an employer, including group life insurance, health insurance, disability
insurance, sick leave, annual leave, educational benefits, and pensions...” The Department of Labor has
found nothing in the legislation or the legislative history to indicate that this definition should be
interpreted narrowly or that Congress intended the list in the statute to be exhaustive. Thus, the
Department interprets this definition broadly to include all benefits provided or made available to
employees, including discretionary benefits such as paid administrative leave for physical fitness activity.

Section 105 of FMLA and section 825.220 of the Regulations, 29 CFR Part 825, set forth certain
protection to employees who exercise their rights to take FMLA leave. The FMLA prohibits employers
from interfering with, restraining, or denying an employee’s rights under this law. Further, it is unlawful for
any employer to discharge or in any other manner discriminate against any employee for opposing any
unlawful practice under this law. Moreover, employers may not use the taking of FMLA leave as a
negative factor in any
employment action or decision.

“Interfering with” the exercise of an employee’s rights would include refusal to grant FMLA, or
discouraging an employee from taking FMLA leave. The FMLA, however, does not entitle any employee
to any right, benefit, or position of employment other than any right, benefit, or position of employment to
which the employee would have been entitled if the employee had not taken FMLA leave. Thus, the Act’s
anti-discrimination provisions prohibit an employer from requiring more of an employee who took FMLA
leave than the employer would require of employees who take other forms of paid or unpaid leave. The
decision to approve or deny paid administrative leave for physical fitness activity in this case must take
into consideration what the employer would normally do in similar leave situations that involve non-FMLA
leave, in addition to the other factors that are used to determine whether such leave would be granted.
Simply denying an employee the use of administrative leave for physical fitness activity during the lunch
hour because
the employee is taking intermittent FMLA leave is discriminatory on its face.

We don’t see anything in your description of the facts about why the employee was not allowed to use
administrative leave for physical fitness but
for the taking of FMLA leave. If the assessment of these facts
is correct, we would view the denial of physical fitness leave in this case to be a violation of FMLA’s anti-
discrimination clause (Sections 105 of the Act and 29 CFR 825.220 of the Regulations) on the basis that
the employer cannot treat employees who use FMLA leave in a manner that discriminates against them
for taking FMLA leave.

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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

I trust this letter clarifies our earlier response on this matter. If you require further assistance, please do
not hesitate to contact the
Name* District Office or me.

Sincerely,

Michelle M. Bechtoldt
Office of Enforcement Policy
Family and Medical Leave Act Team

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).
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