FMLA during holidays

The Wage and Hour Division of the U.S. Department of Labor ("DOL") recently published an Opinion Letter titled "Whether Holidays Count Against an Employee's FMLA Leave Entitlement and Determination of the Amount of Leave Taken." The letter clarifies the application of leave under the Family and Medical Leave Act (FMLA) when a holiday falls within the workweek.

The crux of the letter is the question of whether an employee taking FMLA leave during a week inclusive of a holiday should have leave calculated as: (A) a fraction of their standard workweek; or (B) a fraction of a decreased workweek (i.e., their regular workweek minus one day). The DOL advises that the computation should be based on a fraction of the employee's usual, full workweek.

When Leave Is Taken for a Full Workweek:

Eligible employees of covered employers are entitled to 12 weeks of unpaid leave for specific family and medical purposes under the FMLA. The letter emphasizes that if a holiday falls within a week in which the employee is taking an entire workweek of FMLA leave, the regulations mandate that the whole week be counted as FMLA leave.

When Leave Is Taken on an Intermittent or Reduced Schedule:

Employees may utilize FMLA leave intermittently or on a reduced leave schedule, reducing their hours in the day or week. The letter confirms the DOL's consistent position that a holiday is not counted as FMLA leave when less than a full workweek of leave is taken, unless the employee was slated to work on the holiday and used FMLA leave for that day.

The letter also refers to a 2008 Notice of Proposed Rulemaking that declared the use of intermittent or reduced schedule leave "shall not result in a reduction in the total amount of leave to which the employee is entitled…. beyond the amount of leave actually taken." Therefore, subtracting the holiday from the workweek when calculating FMLA leave for a partial week would wrongly diminish the employee's leave entitlement.

The DOL concludes that the FMLA leave entitlement should be grounded in the employee's standard workweek. If the employee is not scheduled or expected to work on the holiday, the fraction of the workweek of leave used is determined by dividing the amount of FMLA leave taken (excluding the holiday) by the entire workweek (including the holiday).

This Opinion Letter provides a critical framework for both employers and employees, ensuring that the implementation of FMLA leave, especially in weeks containing a holiday, adheres to federal guidelines. It underscores the necessity to base calculations on the employee's full, normal workweek rather than reducing it due to holidays, which preserves the true entitlement of the leave.

The full text of the Opinion Letter is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Article by Meredith "Merry" Campbell, Joy C. Einstein, Alexander I. Castelli and Drew T. Ricci
Shulman Rogers (c) Mondaq Ltd, 2023

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