By Adam C. Maxwell and Adam N. Hirsch
DOL Says FMLA Leave Can Include Travel Time
Questions about employee commute time regularly cause confusion in the workplace, whether in the context of pay, leave, or expense reimbursement. Employers are accustomed to treating “timekeeping” as a wage-and-hour exercise under the Fair Labor Standards Act (“FLSA”), where it is well-established that ordinary commuting is not compensable and even employer-required travel may fall outside “hours worked,” depending on when it occurs and how closely it is tied to the workday.
On January 6, 2026, the Department of Labor Wage and Hour Division (“WHD”) published an opinion letter clarifying how travel time is treated for medical leave purposes under the Family Medical Leave Act (“FMLA”). Unlike the FLSA, the FMLA addresses whether time away from work is protected and allocable to an employee’s leave entitlement, not whether it must be paid as wages. In its new opinion letter (FMLA 2026-2), the WHD clarifies that travel time to and from qualifying medical appointments may count against an employee’s FMLA entitlement even when the time is not compensable.
Practice tip: While the FMLA provides up to 12 weeks of leave, intermittent leave is not measured in weeks. Instead, the entitlement is converted into hours based on the employee’s normal work schedule, and each qualifying absence—usually tracked in hourly or smaller increments—is deducted from that total. In that context, travel time is not trivial. Over the course of recurring appointments, travel can meaningfully affect how quickly an employee exhausts FMLA protection.
What The Opinion Letter Actually Clarifies
In its opinion letter, the WHD makes clear that travel to and from an FMLA-qualifying medical appointment is not ancillary; it is part of the act of obtaining care and should be recorded that way. But the WHD also draws an important boundary: FMLA protection does not extend to personal errands, side trips, or unrelated activities that happen to bracket a medical appointment. Travel time counts only to the extent it is tied to the qualifying reason for leave.
The letter also makes clear that a medical certification is not incomplete simply because it does not include or estimate travel time. Health care providers certify medical necessity, which does not include commute logistics. Requiring physicians to quantify travel time, or using the absence of that information as a basis to deny or limit leave, misreads both the statute and the regulations.
Why This Matters For Employers
When qualifying time is not designated as FMLA leave, employers often end up extending the leave period beyond what the statute requires. Travel time that is approved informally, coded inconsistently, or ignored altogether can delay exhaustion of an employee’s entitlement and surface later as significant problems when attendance issues arise. This risk is compounded by how intermittent leave is commonly managed: supervisors who allow early departures, late returns, or “extra time” around appointments without involving HR inadvertently increase risk to the organization. In those situations, an employer’s records and past practices introduce ambiguity into what would otherwise be a straightforward disciplinary analysis. Over time, inconsistent handling across departments undermines the integrity of leave tracking and often creates exposure for uneven enforcement.
The Effect of WHD Opinion Letters
While opinion letters do not carry the force of law, they occupy an important place in FMLA enforcement and litigation. Though courts ultimately determine the meaning of the law, they will frequently view opinion letters as persuasive guidance, particularly where statutory language leaves room for interpretation. As a matter of practice, opinion letters tend to shape the framework through which employer practices are built and how they are assessed by courts, especially in “close” cases.
Takeaway
For employers, the practical lesson is to separate payroll rules from leave rules. Time that is not compensable under the FLSA may still be allocable to an employee’s FMLA entitlement, and failing to recognize that distinction can have consequences well beyond a single leave request. When qualifying travel time is not designated consistently, employers risk extending job protection longer than intended and creating records that undermine later disciplinary decisions. Training managers on proper allocability (and not using “paid versus unpaid” as the proxy for FMLA coverage) helps reduce disputes and ensures that leave entitlements are tracked, exhausted, and enforced as the law intends.
The FLSA and FMLA are only two of many federal, state, and local statutes that govern employee pay, leave, and timekeeping obligations, and their requirements do not always align. This article is intended to provide general guidance and should not be construed as legal advice. For questions regarding FMLA leave administration, wage-and-hour compliance, or related employment issues, businesses should consult legal counsel.
Contact
If SFBBG can be of assistance, please contact employment attorneys Adam Maxwell ([email protected]) or Adam Hirsch ([email protected]).
This article has been updated as of March 3, 2026.
