DOL Issues New Opinion Letters

The U.S. Department of Labor recently issued 4 new opinion letters on applying the Fair Labor Standards Act (FLSA) and 2 new opinion letters on the Family and Medical Leave Act (FMLA). The opinion letters address specific nuances of these laws and provide a refresher on basic concepts we regularly apply under these laws. If you have questions about any of the principles covered, please contact a KZA attorney for assistance.  

Opinion Letter FLSA 2026-1 addresses whether an individual qualifies for the “learned professional” exemption from overtime and, if so, whether an employer can change her classification to nonexempt. The DOL concluded that even if the employee was exempt from overtime under this overtime exemption, the employer could lawfully classify her as non-exempt. The DOL explained that whether to claim an exemption is within the employer’s discretion and that the FLSA only prohibits misclassification of a non-exempt employee as exempt. 

Opinion Letter FLSA 2026-2 addresses the types of bonuses that must be included in the calculation of an employee’s regular rate of pay and overtime rate for each workweek worked. It explains that only discretionary bonuses can be excluded from the overtime rate and explains the three conditions that must be satisfied. The DOL further explains why the employer’s incentive plan was not a discretionary bonus and how the employer should calculate the overtime rate for employees earning bonuses under this plan. 

Opinion Letter FLSA 2026-3 addresses whether a union and an employer can agree that a 15-minute “roll call” required prior to each scheduled shift is excluded from overtime pay. It applies and explains two partial overtime exemptions for employees who work pursuant to CBAs.

Opinion Letter FLSA 2026-4 addresses the overtime exemption for retail or service employees who earn more than 50% of their compensation via commissions on goods or services. 

Opinion Letter FMLA 2026-1 addresses how a school closure of less than one full week impacts the amount of leave a school employee uses under the FMLA. The DOL explained that the answer depends on what leave the employee was scheduled to take. If the employee is scheduled to use less than a full workweek of FMLA leave, the time when the school is closed for inclement weather should not be deducted from the FMLA entitlement unless the employee was expected to work during the closure. If the employee was scheduled to take the full workweek as FMLA, however, the entire week can still be counted against the FMLA entitlement even if the school was closed for part of the week. 

Opinion Letter FMLA 2026-2 addresses whether FMLA leave may be used for time spent traveling to or from medical appointments. The DOL states that the FMLA does allow an eligible employee to use FMLA leave to travel for a medical appointment, but that travel to or from, or stops for, activities unrelated to care and treatment for a serious health condition are not covered. The DOL also concluded that a medical certification does not need to include any information regarding a patient’s travel time. 

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.