Holidays and Calculating FMLA Leave

Employment Law

Holidays and Calculating FMLA Leave

Jun 1, 2023 | Employment Law

The Family and Medical Leave Act (FMLA) has been around for about 30 years. It is straightforward in its purpose: to provide eligible employees with unpaid leave to bond with a newborn, newly adopted, or newly placed child, care for a seriously ill child, spouse, or parent, or to care for their own serious health condition, without fear of losing their jobs. Yet, in application, many employers have found the FMLA to be equivocal or downright opaque on important requirements under the statute.

The DOL weighed in on one such issue recently, issuing an Opinion Letter to clarify when an employer must count a holiday against an employee’s FMLA leave entitlement. Why does that matter? Miscalculating the amount of FMLA leave used by an employee could subject an employer to liability for interference with the employee’s FMLA rights.

A few FMLA basics: Eligible employees may take up to 12 workweeks of leave in a 12-month period for various qualifying reasons.  Under certain circumstances, an employee can use FMLA leave intermittently, i.e., in separate blocks of time on a reduced leave schedule, by reducing the time worked in the day or week.

What is the Default Rule for Calculating FMLA Leave?

The default rule for employers to use in calculating the amount of FMLA leave used when an employee takes qualifying leave is based on the employee’s normal workweek:

[I]f an employee who would otherwise work 40 hours a week takes off eight hours, the employee would use one-fifth (1/5) of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work eight-hour days works four-hour days under a reduced leave schedule, the employee would use one-half (1/2) week of FMLA leave.

29 C.F.R. § 825.205(b)(1).

Does the Default Rule Still Apply in a Workweek with A Holiday?

Yes, If the employee is taking a full workweek of FMLA leave, then the entire week is counted as FMLA leave. For example, an employee who works Monday through Friday and takes leave for a week that includes the July 4 holiday on Thursday would use one week of FMLA leave and not 4/5 days of a week.

However, when the employee is taking less than a full workweek of FMLA leave, “the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.” 

What are the Takeaways from the DOL’s Opinion Letter?

The takeaways for employers from the DOL’s Opinion Letter include the importance of accurately calculating an employee’s leave entitlement under the FMLA to avoid a claim that the employer improperly interfered with the employee’s FMLA rights. When a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the employer must count the entire week as FMLA leave. On the other hand, when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

If you have questions about your policies and practices to ensure compliance with the FMLA or other federal or state employment laws, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.

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