January 05, 2026
U.S. DOL Issues First Opinion Letters of the New Year
The U.S. Department Labor the first opinion letters of 2026: four addressing FLSA questions and two FMLA-related. I found the tone of some of the letters interesting. These letters usually read as a response to an attorney who has submitted one or more questions on behalf of an unnamed client employer. Several of these letters are written in response to an employee who is asking one or more questions about actions the employer has taken. This may mean employees are more engaged and taking steps to ensure they are receiving all the protections afforded them under these laws. Here are some highlights from four of the letters.
Q: Is an employer permitted to reclassify an exempt employee as non-exempt solely due to a change in organizational structure?
A: Yes. The FLSA only prohibits the misclassification of a non-exempt employee as an exempt one. Thus, employers can make lawful business decisions to not apply an exemption. FLSA 2026-1
Q: Must an employer include bonus payments that are made to a non-exempt employee based on an employee’s punctuality, attendance, consistency in completing daily safety tasks, driving safety, compliance with traffic laws, proper attire, and performance efficiency in the employee’s regular rate of pay for overtime calculations?
A: Likely, yes – if employees were informed of the bonus plan in advance. This answer mirrors an article in last month’s newsletter. FLSA 2026-2
Q: Does FMLA leave cover (1) time spent traveling to or from medical appointments, including where an employee provided the employer with medical certification from a health care provider that confirms the employee’s need for the appointment, (2) but the certification does not address travel to or from the appointment?
A: Yes, (1) an employee may use FMLA-protected leave that counts against his or her FMLA entitlement to travel to or from a medical appointment for a serious health condition. (2) No, a health care provider need not provide an estimate of an employee’s travel time to or from an appointment for the medical certification to be complete and sufficient under the Act. FMLA 2026-2
Q: When does an employee’s FMLA leave count against the employee’s entitlement on days the employer closes its business?
A: When an employee is approved to take FMLA leave for less than a full workweek, and the (school) employer closes for less than a week such that the employee would no longer be expected to report to work during that time, such time during the closure should not be deducted from the employee’s FMLA leave entitlement. Conversely, for an employee using FMLA leave for a full workweek, when a business closes for less than a week the closure has no impact on the employee’s FMLA leave usage, and the employer may deduct a full week’s worth of leave from the employee’s FMLA leave entitlement. FMLA 2026-1
You can find the other two opinion letters here: FLSA 2026-3 addresses a question about the limits of certain employer-union agreed upon provisions of a collective bargaining agreement; and FLSA 2026-4 addresses tips and commissions.
