Following up on its re-opening of the Opinion Letter program, the United States Department of Labor, Wage and Hour Division (“DOL”) issued six new opinion letters on January 5, 2026. These letters are helpful guidance for employers. Interestingly, of the six letters issued last week, three appear to have been requested either by an employee or a union rather than the employer. This raises the question of whether employees who are questioning their exempt status, or the employer’s method of payment, will use the opinion letter process to gain support for their position.
Four of the six letters have widespread applicability and are summarized here.
- FMLA 2026-1 explains how much FMLA leave must be used when a school closes for part of the week due to inclement weather. Although the specific facts involve a school, the principles are equally applicable to any kind of business that has a partial week closure. DOL explains that FMLA entitlement is based on weeks of leave. Therefore, when an employee has approved FMLA leave for less than a full workweek (reduced schedule leave or intermittent leave) and the worksite closes for less than a week, the employee can only be charged for days that they were scheduled/expected to work. For example, if an employee is scheduled to use FMLA leave for a doctor’s appointment on Tuesday afternoon, but the worksite is closed due to bad weather, that employee should not be required to use FMLA for that afternoon’s absence. On the other hand, if an employee is scheduled to use FMLA for a full week, but the worksite is closed for part of the week, DOL explains that the closure has no impact on the amount of FMLA the employee is required to use, and they can be charged for the full week of FMLA leave.
- FLSA 2026-1 addresses an employee’s reclassification from exempt to non-exempt status. The employee, a licensed Clinical Social Worker for a healthcare organization, was previously classified as exempt, but was moved to non-exempt, hourly status due to a re-organization which removed their supervisory duties. The DOL reviewed the requirements for exempt professional status and concluded that even if the employee’s duties meet the requirements of the professional exemption, the employer has the right and the option to treat her as non-exempt.
- FMLA 2026-2 responds to a question about whether an employee can use FMLA leave to cover time spent traveling to his own, or a family member’s, medical appointment for treatment of a serious health condition, and whether the medical certification must indicate how much travel time is necessary. The DOL states unequivocally that an employee can use FMLA leave for time spent traveling to a medical appointment and that the certification does not need to include any estimate from the health care provider on the amount of travel time that will be necessary. The DOL notes that travel unrelated to seeking medical care (e.g., personal stops along the way) is not covered. This appears to suggest that the employer should discuss with the employee how much time is spent on necessary travel to the medical appointment as opposed to personal unrelated stops along the way.
- FLSA 2062-2 addresses whether an employer is permitted to exclude certain bonus payments from the calculation of overtime. The bonus program in question applied to non-exempt employees and was based on detailed criteria. The bonus was automatically earned once the criteria were met. DOL determines that it is a non-discretionary bonus and therefore the bonus payments must be included in the regular rate for purposes of calculating how much overtime is due. This opinion letter contains helpful discussion of the kinds of bonuses that must be included in the regular rate for purposes of overtime.
The employment lawyers at Poyner Spruill monitor US DOL/WHD opinion letters closely and can explain how they might illuminate particular facts and situations in your business.
