DOL Issues New FLSA and FMLA Opinion Letters: Key Guidance on Medical Travel, School Closures, and Wage Rules, by Benny Menaged, Esq. and Keith J. Gutstein, Esq., 3-2-2026

The U.S. Department of Labor’s Wage and Hour Division (WHD) recently issued six new opinion letters addressing key questions under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).  

Overview

The DOL’s January 5, 2026, opinion letters address the following:

• FLSA2026‑1: Whether an employee’s position meets the learned professional exemption and whether the employer may nonetheless reclassify the employee as non‑exempt.​
• FLSA2026‑2: When certain bonus payments may be excluded from the regular rate and how to calculate overtime if they must be included.​
• FLSA2026‑3: Whether a mandatory, collectively bargained 15‑minute pre‑shift “roll call” must be included in overtime calculations and the limited circumstances in which a statutory CBA-based overtime exemption may apply.​
• FLSA2026‑4: For the section 7(i) commissioned employee exemption, whether employers must use the federal minimum wage (as opposed to a higher state minimum wage) in the minimum pay test, and whether tips may be treated as commissions for purposes of satisfying the “primarily commissioned” requirement.​
• FMLA2026‑1: How school closures of less than a full week affect FMLA leave usage for school employees.​
• FMLA2026‑2: Whether FMLA leave may be used for travel time to and from medical appointments and whether that travel must be addressed in the medical certification.​

Opinion letters provide official written interpretations from the Department of Labor (DOL”), explaining how laws apply to specific factual circumstances presented by individuals or organizations.

This recent issuance of multiple letters signals that the DOL has relaunched and expanded its opinion letter program, and employers should stay apprised, review past letters, and submit new requests through the updated online opinion letter portal.

FLSA2026‑1: Learned Professional Exemption

Employers may classify employees as non‑exempt and pay overtime even if the position meets the learned professional exemption under section 13(a)(1) of the Fair Labor Standards Act (FLSA or Act), provided minimum wage, overtime, and recordkeeping requirements are satisfied. The opinion clarifies that employers retain discretion to structure pay to align with business or employee‑relations preferences, even when exemption criteria are met.

For example, as stated in the Opinion, an employee who was relieved of supervisory responsibilities likely continues to satisfy the “duties” requirement of the learned professional exemption if their duties include “work requiring advance knowledge” “in a field of science or learning” which is “customarily acquired by a prolonged course of specialized intellectual instruction.”

FLSA2026‑2: Bonuses and Regular Rate

This letter addresses when certain bonus payments may be excluded from the regular rate and how to calculate overtime if they must be included. Bonuses paid under predetermined, objective criteria are generally non‑discretionary and must be allocated over the bonus period and included in the regular rate when calculating overtime. Only truly discretionary bonuses—those paid solely at the employer’s option, not expected by employees nor tied to specific performance standards—may be excluded.

FLSA2026‑3: Pre‑Shift Roll Call Time

FLSA2026‑3 considers whether a mandatory, collectively bargained 15‑minute pre‑shift “roll call” must be included in overtime calculations. The DOL concluded that such time ordinarily constitutes hours worked and must be counted toward overtime, even if a collective bargaining agreement provides otherwise, except where certain narrow statutory CBA‑based overtime exemptions apply. The opinion reinforces that FLSA wage protections cannot be waived or altered through private agreement unless expressly permitted by statute.

FLSA2026‑4: Commissioned Employees and Tips

For the section 7(i) commissioned employee exemption for retail or service establishment employees, the DOL confirmed that employers must use at least the federal minimum wage—rather than a higher state minimum wage—when applying the minimum pay test. The minimum pay test under this section requires the employees’ regular rate of pay to exceed one and one-half times the federal minimum wage. The opinion also clarifies that tips generally do not qualify as commissions for purposes of satisfying the “primarily commissioned” requirement, though limited exceptions may exist where pay structures closely resemble commission systems.

FMLA2026‑1: Partial‑Week School Closures

FMLA2026‑1 clarifies how to calculate FMLA usage for school employees when a school closes for less than a full week (for example, a one‑ or two‑day weather closure) while the employee is using either intermittent or full‑week FMLA leave.

If the employee is taking less than a full workweek of leave, closure days when the employee is not expected to work do not count against FMLA entitlement. If the employee is on full‑week FMLA leave, the full week still counts, even if the school is closed for one or more days.

The opinion emphasizes that FMLA entitlement is measured in “workweeks of leave” and that employers may not deduct leave “beyond the amount actually taken.”

FMLA2026‑2: Travel Time to Medical Appointments

FMLA2026‑2 confirms that FMLA leave may cover not only time spent at a qualifying medical appointment but also reasonable travel time to and from that appointment, for both the employee and certain family members with serious health conditions.

Eligible employees may use FMLA leave for travel necessary to obtain care and continuing treatment from a health care provider for their own serious health condition. They may also use FMLA leave for travel when accompanying a qualifying family member who needs assistance.

A medical certification does not need to specify or estimate travel time for the certification to be “complete and sufficient,” as health care providers are not expected to know travel durations. However, the letter clarifies that FMLA protection does not extend to travel or activities unrelated to the serious health condition, such as errands or social engagements.

Action Steps for Employers

• Review and update FMLA policies and practices to ensure reasonable travel time to and from medical appointments is properly tracked and counted consistent with new guidance.
• Train HR, payroll, and front‑line managers on when FMLA leave may (and may not) be charged, including intermittent leave during school closures and limits on non‑treatment travel.
• Audit wage and hour classifications and pay practices—covering exempt classifications, bonus structures, roll‑call time, and commissioned employee pay—to confirm compliance with FLSA standards.
• Reevaluate bonus and commission plans to determine whether payments are truly discretionary and whether they must be included in the regular rate or counted toward section 7(i) requirements.
• Monitor future DOL opinion letters and consider submitting fact‑specific questions through the WHD opinion letter portal when compliance questions arise.
• Stay tuned to KD’s client alerts for important updates.

Authors: Fort Lauderdale Partner Benny Menaged and Keith J. Gutstein, Chair of KD’s Labor and Employment Law Practice Group and Co-Managing Partner of the Long Island Office