Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
On May 30, 2023, the Department of Labor (“DOL”) issued an opinion letter clarifying how to calculate leave taken under the Family and Medical Leave Act (“FMLA”) during a week containing a holiday. It is important for employers to properly calculate employee FMLA leave time because a miscalculation could be considered an interference with an employee’s FMLA rights.
The FMLA requires covered employers to provide eligible employees up to twelve workweeks of unpaid leave within a twelve-month period for qualifying family or medical reasons or twenty-six workweeks of unpaid leave within a twelve-month period for caretaking of qualifying service members. Employees may take FMLA leave intermittently by taking leave in separate blocks of time or by working shortened weeks or days. The amount of FMLA leave taken by employees is calculated as a fraction of the employee’s actual workweek. For example, an employee who normally works forty hours a week but takes off eight hours for FMLA reasons, would use 1/5 of a week of his or her FMLA leave entitlement.
Full Workweek of FMLA Leave
The DOL clarified that when an employee takes a full workweek of FMLA leave and the workweek contains a holiday, the entire week is counted as FMLA leave, regardless of whether the employee was supposed to work the holiday. For example, an employee who normally works Monday through Friday takes FMLA leave for the entire week of Thanksgiving. Thanksgiving is a Thursday holiday, and the employee is not scheduled or expected to work that day. Even though the employee would not have worked Thanksgiving if she was not taking FMLA leave, the holiday would count as FMLA leave and a full week of leave would be deducted from the employee’s FMLA leave entitlement.
Partial Workweek of FMLA Leave
The calculation is different when an employee takes less than a full workweek of FMLA leave. When an employee takes a partial week of FMLA leave and a holiday falls within that partial week, the holiday does not count towards the employee’s leave entitlement if the employee was not scheduled or expected to work the holiday. However, if the employee was scheduled and expected to work the holiday and is using FMLA leave for that day, then the holiday would count towards the employee’s FMLA leave entitlement.
For example, an employee who normally works Monday through Friday, takes FMLA leave only for Wednesday through Friday during the week of Thanksgiving, a Thursday holiday. If the employee is not scheduled or expected to work on Thanksgiving, then the holiday will not count towards the employee’s FMLA leave entitlement. It is important to note that the holiday still counts towards the days of the actual workweek. Therefore, the employee would only use 2/5 of a week of FMLA leave time, not 3/5 of a week and not 1/2 of a week.
Conclusion
The DOL opinion letter does not change anything regarding the FMLA, but rather clarifies confusion on how to calculate FMLA leave during a holiday. In sum, if an employee takes an entire week of FMLA leave, an entire week will be deducted from the employee’s FMLA leave entitlement, regardless of whether there is a holiday during that time. However, if an employee takes a partial week of FMLA leave that includes a holiday, the holiday will not count towards the employee’s FMLA leave entitlement, unless the employee was scheduled and expected to work that holiday.