A new opinion letter from the U.S. Department of Labor (DOL) clarifies how employers are supposed to calculate leave under the Family and Medical Leave Act (FMLA) when it’s taken during a week that includes a holiday. The holiday does not count against an employee’s FMLA entitlement if the employee works part of that week, the May 30 opinion letter explains.
The FMLA guarantees employees unpaid, job-protected leave for 12 workweeks in a 12-month period.
Workers can take FMLA leave intermittently, working shorter days or shorter weeks. It doesn’t have to be continuous leave. For an employee who normally works 40-hour weeks, intermittent FMLA leave could be up to 480 hours per year.
If a holiday falls during a week when an employee takes a full workweek of FMLA leave, then a full week is counted as FMLA leave. However, if a holiday falls during a week when an employee works some hours and takes some FMLA leave, the holiday is not counted as FMLA leave, unless the employee was normally scheduled and expected to work on that holiday.
For example, if Memorial Day falls on Monday, and Dan is out on FMLA for that entire week because of a broken hip, then the employer should count one week, or 40 hours, of FMLA leave taken. If Mary works on Tuesday, but takes FMLA leave on Wednesday, Thursday and Friday due to her migraines, then the employer should count three-fifths of a week, or 24 hours, of FMLA leave taken. That’s assuming Mary typically works 40 hours per week and she’s not normally scheduled to work on Memorial Day.
“I think most practitioners were probably following this way,” said Nathan Baker, an attorney with Barnes & Thornburg in Indianapolis. “I think it’s a clarification of how a lot of us have been treating it this whole time.”
Some employees don’t work a 9-to-5, Monday through Friday schedule. Make sure your FMLA calculation is specific to the individual’s work schedule, especially if their normal schedule is different from the typical 40 hours, Baker said. “The employee’s actual workweek is the basis of leave entitlement,” the opinion letter states.
In this context, a holiday is what the employer has designated as a paid holiday for its employees. This doesn’t necessarily include all the state-recognized or federally recognized holidays.
“Even within one employer, you could have a portion of your workforce who isn’t scheduled to work on a holiday and others who have to report to work on the holiday,” said Jeff Nowak, an attorney with Littler in Chicago.
Reasons for Leave
The FMLA allows workers to take leave for a variety of reasons, including their own serious illness; caring for a seriously ill family member; birthing and caring for a newborn; completing an adoption; or handling situations caused by the military deployment of a spouse, child or parent.
An eligible employee can take FMLA leave for several different qualifying reasons in one year, as long as it doesn’t exceed the total amount of time permitted. For example, a worker could take one week of FMLA leave in February to recover from knee surgery and four weeks of FMLA in December after the birth of a child. The reason for the leave won’t impact how holidays are counted.
Penalties for FMLA Interference
Employees can bring a civil lawsuit against an employer for FMLA violations. If the charges are proven, the employer may have to pay lost back pay, lost front pay, liquidated damages and attorney fees.
“If we don’t follow [the DOL opinion letter], it presents a compliance issue for employers,” Nowak said.
“Employers using a third-party leave administrator should confirm that the leave administrator is accounting for employees’ use of FMLA in workweeks with holidays in a manner consistent with the opinion letter,” said Christopher Durham, an attorney with Duane Morris in Philadelphia. “In the event that an employer discovers that its, or its third-party administrator’s, past practice is inconsistent with the opinion letter, the employer should consider contacting counsel to discuss what, if any, remedial actions it may need to take with respect to affected employees.”
reposted with permission from SHRM 06.2023