Yes, usually, is the short answer set out in a new DOL opinion letter. An employee is permitted to use leave under the Family and Medical Leave Act (FMLA or Act) for work time spent in medical appointments either related to their serious medical condition or those of a qualifying family member. Such FMLA leave time extends, in many circumstances, to travel time to or from a medical appointment, even in situations where the employee has not provided the employer with a “medical certification” to support the need for travel-related leave. However, not all employee travel circumstances will result in covered leave under the FMLA. Exceptions are explained below.

FMLA Leave Basics

The FMLA entitles eligible employees of covered employers to take twelve workweeks of unpaid, job-protected leave in a twelve-month period because of a serious health condition that makes the employee unable to perform the functions of their position. Eligible employees are also permitted to use FMLA leave in order to care for certain family members if the family member has a serious health condition, including when a family member is unable to transport himself or herself to the doctor for treatment.

A basic tenet of the FMLA is that an employee can use protected leave for time spent in medical appointments to diagnose, monitor, address or treat the employee’s medical condition. It follows, therefore, that employee travel time to a medical provider’s location is also protected leave when required to obtain care and continuing treatment. That would also be true when the employee requires travel time in order to care for certain family members with a serious health condition by traveling with them to medical appointments to obtain medical treatment.

Employees are able to use such FMLA leave intermittently, i.e., in separate periods of time lasting from as short as an hour or more to several weeks, rather than in one continuous block of time, when related to a single condition, illness, or injury.

When is Employee Travel Time Protected by the FMLA?

To illustrate these FMLA principles, the DOL offered the following examples:

Example 1: An FMLA-eligible employee works daily from 9:00 a.m. to 5:00 p.m. She requests intermittent leave to transport herself to or from a medical facility to complete her dialysis treatment. Her drive to the medical facility is about 30 minutes. The employee was able to schedule the appointment at 4 p.m. each day to minimize the impact to her employer. Here, the employee’s 30 minutes of travel to her appointment qualifies for FMLA leave, along with any time that elapses while she receives treatment, to the end of her scheduled workday at 5:00 p.m.

Example 2: An employee eligible for FMLA leave requests intermittent leave to take his mother to her biweekly doctor’s appointments for the treatment of a serious health condition. He provided his employer with a medical certification explaining that his mother must attend an estimated 30-minute appointment every other week. Every other week, the employee leaves his workplace, drives to his mother’s house, picks her up and drives her to her appointment, and drives her home before returning to work. The amount of time he needs to travel, wait for his mother’s appointment to begin and end, and assist his mother when she returns home, varies, though he typically uses two to two and a half hours every other week. The time the employee needs is FMLA-protected and counts against his FMLA entitlement.

When is Employee Travel Time Not Covered by the FMLA?

While the FMLA generally provides protected leave to employees to obtain care and treatment – including time spent traveling to obtain such care and treatment – the Act does not protect employee misuse of that leave. Absences that are not directly connected with a serious health condition are not covered by the FMLA and the employee may be subjected to disciplinary action based upon such absences. For example, FMLA-protected leave does not include travel to or from, or stops for, or other activities unrelated to or connected with treatment for a serious health condition. The DOL offered these scenarios:

Example 3: An employee requests leave from work to accompany his child on his child’s high school band trip. The child has a chronic serious health condition but does not have any episodes of incapacity or need for care during the trip. Any time the employee takes off work to travel on the band trip would not be covered by the FMLA because the leave is not related to his child’s serious health condition.

Example 4: An FMLA-eligible employee has a serious health condition and takes intermittent leave on Friday afternoons for 2 hours to go to physical therapy. She leaves work, travels to the physical therapy center, attends physical therapy, and returns to work most days. One Friday, the employee requests leave for 3 hours, including an extra hour in order to go by the library and do grocery shopping after her physical therapy. While the 2 hours the employee needs for her physical therapy is FMLA- protected, the time she spends in activities not related to her serious health, i.e., going to the library and grocery shopping, would not be FMLA-protected leave and would not count against her leave entitlement.

The Takeaways

The FMLA prohibits employers from interfering with, restraining, or denying an employee from using FMLA-protected leave. To avoid running afoul of the statute’s mandates, employers must accurately credit employees for FMLA-protected leave usage. As shown above, employers do not have to credit all employee travel time related to obtaining treatment of a FMLA-covered medical condition. A decision to deny such leave should be undertaken carefully, unless there are clear indications that the employee is claiming leave time for activities that simply have no relationship to obtaining medical treatment.

If you have questions about your policies and practices to ensure compliance with the FMLA or other federal or state employment laws, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.