The U.S. Department of Labor (DOL) has issued a new opinion letter providing guidance on calculating Family Medical Leave Act (FMLA) leave taken during a week that includes a holiday. The opinion letter explains that a holiday occurring under these circumstances does not count against an employee’s FMLA entitlement so long as the employee works at least part of the week.
The FMLA requires covered employers to provide eligible employees with leaves or a series of leaves totaling 12 weeks (26 weeks for servicemember care leave) in any 12-month period. Leaves may be taken for an employee’s own serious illness, the birth or adoption of a child, placement of foster child, the care of a seriously ill family member, or for certain military family leaves with guarantees of job security and certain employment benefits during the leave.
Under certain circumstances an employee may also take leave intermittently or on a reduced leave schedule. In most cases, after the leave period has ended, the employee must be restored to their former position, or an equivalent position with equivalent pay.
To assist employers, the DOL provides the following example of how to determine the fraction of a workweek of FMLA leave used during a week with a holiday where an employee works and uses FMLA:
“[I]f an employee needs less than a full week of FMLA leave, and a holiday falls within the partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee’s FMLA leave entitlement if the employee would not otherwise have been required to report for work on that day. If an employee needs a full week of leave in a week with a holiday, however, the hours the employee does not work on the holiday will count against the employee’s FMLA entitlement.
Accordingly, for an employee with a Monday through Friday work week schedule, in a week with a Friday holiday on which the employee would not normally be required to report, if the employee needs FMLA leave only for Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave because the employee is not required to report for work on the holiday. However, if the same employee needed FMLA leave for Monday through Friday of that week, the employee would use a full week of FMLA leave despite not being required to report to work on the Friday holiday.”
For employees who do not work a typical Monday – Friday schedule employers will want to make sure the FMLA calculation used is specific to the individual’s work schedule. In other words, the employee’s actual workweek provides the starting point for the leave entitlement calculation. Keep in mind that the holiday-calculation applies to any holiday (i.e., state, federal or employer designated).
Employers should review current calculation methods (including those performed by any third-party leave administrators) to ensure compliance with the opinion letter. Proven violations of FMLA mandates can expose an employer to significant financial risk.