Brief Summary: On May 30, 2023, the Department of Labor (DOL) issued an opinion letter clarifying how holidays interact with Family and Medical Leave Act (FMLA) leave. Generally, holidays do not count as FMLA leave for employees taking a partial week of FMLA leave as long as the employee is not expected or scheduled to work on the holiday.
Read on for more information.
FMLA Background
The Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with up to 12 weeks of unpaid, job-protected leave for an eligible employee’s own serious health condition or to care for the eligible employee’s spouse, child, or parent with a serious health condition, and up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember. FMLA leave is also available for eligible employees to take time off work for the birth, adoption, or foster care placement of a child and to bond with the child.
Eligible Employees: Employees are eligible for FMLA leave if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.
Covered Employers: Covered employers under the FMLA are those who employ 50 or more employees for 20 or more workweeks in the current or preceding calendar year, including joint employers or successors in interest to another covered employer.
Under certain circumstances, an employee may use FMLA leave intermittently (i.e., separate blocks of time) or on a reduced leave schedule by reducing the time worked in the day or week. When an employee takes FMLA leave for less than one full workweek, the amount of FMLA leave used is determined as a proportion (or a fraction) of the employee’s actual workweek.
FMLA and Holidays
When a holiday falls during a week in which an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave, including the holiday.[1]
However, when a holiday falls during a week in which an employee is taking intermittent FMLA leave (less than a full workweek), the holiday is not counted as FMLA leave unless the employee is otherwise scheduled and expected to work on the holiday and used FMLA leave for that day.[2]
Recent DOL Bulletin Guidance
This recent DOL opinion letter confirms and clarifies that an employee’s normal workweek is the basis of the employee’s FMLA leave entitlement. If a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was scheduled or required to report for work on the holiday. As a result, if the employee is not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).
Example: An employee, with a Monday through Friday workweek schedule, needs FMLA leave for only Wednesday through Friday of a particular week. That week happens to have Friday as a holiday on which the employee would not normally be required to report. 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.
Of note is another example provided in the opinion letter demonstrating an impermissible FMLA entitlement calculation. In this example, an employee who normally works a 5-day week and takes one day of FMLA leave should result in the employee using 1/5 of a workweek of FMLA leave, rather than 1/4 of a workweek. Calculating the amount of FMLA leave entitlement with the 1/4 amount would result in an impermissible reduction of the employee’s FMLA leave entitlement since the employee would be required to use a larger amount of FMLA leave than necessary. This particular example would also result in an interference with an employee’s FMLA rights.[3]
The opinion letter also confirms this guidance clarifying the interaction between intermittent FMLA leave and holidays is consistent with the “rolling backward” calculation of FMLA leave entitlement.[4]
Example: An employee takes one day of FMLA leave in a week with a holiday. FMLA leave would be used and then replenished on a rolling basis 12 months later in increments of 1/5th of a workweek.
Employer Actions
This DOL opinion letter, while not breaking new ground, does serve as a potent reminder to employers by reinforcing the DOL’s longstanding and consistent approach to the treatment of holidays interacting with FMLA leave.
Covered employers should take note of this DOL opinion letter for those eligible employees on intermittent FMLA and be sure to properly calculate and account for FMLA leave time in instances of workweeks that include a holiday.
For those covered employers who outsource FMLA administration to an outside vendor, they should receive confirmation from their vendor of compliance with the guidance detailed in this opinion letter.
If you are a covered employer interested in learning more about the advantages of outsourcing your FMLA administration, reach out to your Risk Strategies representative or contact us directly at benefits@risk-strategies.com
[1] 29 C.F.R. § 825.200(h).
[2] Id.
[3] 29 C.F.R. § 825.220(b).
[4] 29 C.F.R. § 825.200(b)(4) & 29 C.F.R. § 825.200(c).
