Just in time for summer, the United States Department of Labor (“DOL”) has issued an opinion letter explaining how to calculate the amount of leave used when an employee takes leave under the federal Family Medical Leave Act (“FMLA”) during a week with a holiday. The letter addresses two scenarios, one in which a holiday falls during a full workweek of leave and the other in which a holiday falls during a workweek when an employee takes FMLA leave for less than a full workweek, for example, if the employee is taking leave on an intermittent basis.
As a reminder, FMLA leave generally entitles eligible employees to take up to 12 weeks of leave if they are unable to work due to their own serious health condition or when needed to care for a family member with a serious health condition. Leave does not need to be taken all at once and instead can be taken on an intermittent basis if recommended by the employee’s health care provider.
Calculate the Amount of FMLA Leave Used
In the first scenario, the FMLA regulations provide that, when a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. In the second scenario, the DOL clarified that, 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 required to report for work on the holiday. As DOL explained “Therefore, if the employee was 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).”
For example, the Fourth of July falls on a Tuesday this year. Assuming your company recognizes July 4th as a holiday, if an employee takes a full week of leave (i.e., Monday, 7/3/23 – Friday, 7/7/23), then the full week counts as FMLA leave. On the other hand, if an employee is not expected or scheduled to work on July 4th and takes FMLA leave on Monday, 7/3/23, and Wednesday, 7/5/23, the employee will only use two (2) days of FMLA leave. If, however, the employee is scheduled to work on July 4th and uses FMLA leave to take it off, the employee will use three (3) days of FMLA leave.
It is important for employers to understand how to correctly calculate the amount of FMLA leave used during a workweek with a holiday, particularly since, as the DOL noted in its opinion letter, improperly deducting a holiday from an employee’s FMLA leave entitlement constitutes unlawful interference with an employee’s FMLA rights. For California employers, the California Family Rights Act regulations are consistent with the FMLA regulations and the DOL’s interpretation above.