Holidays and the FMLA — WHD provides guidance on how to count leave

At the end of May, the U.S. Department of Labor's Wage and Hour Division (WHD), issued an opinion letter explaining parts of the Family and Medical Leave Act (FMLA) regulations that address holidays. The letter is in response to an employer trying to determine how much FMLA leave an employee uses when a holiday (like Independence Day) occurs during a workweek, particularly if the leave is intermittent.

An opinion letter isn't a law, but rather is an official written opinion by the WHD based on a unique situation. Letters like this, however, can help employers navigate employment laws and could be useful if called upon to defend employment decisions in court.

Employer confusion

The reason for the opinion letter was that one part of the regulations indicates that if employees take leave in full workweeks, and a holiday occurs during that week, employers count the whole week as a week of FMLA leave.

Another part of the regulations talks about calculating leave when employees take it intermittently – in less than whole weeks.

These two parts of the regulations sparked confusion. An employer asked the WHD whether an employee taking leave during a week that includes a holiday is using a fraction of the employee's usual workweek (a workweek without a holiday), or if the employee is using a fraction of a reduced workweek (the employee's usual workweek less one day due to a holiday).

If employees take leave in full workweeks, employers may simply count the weeks. If, however, employees take leave in less than a full week (e.g., intermittently), their actual workweek is the basis of how much leave they get. If, for example, an employee who normally works 40 hours per week takes one day of FMLA leave, that would be 1/5 of a week of FMLA leave.

Holidays and FMLA leave

Calculating FMLA leave when a holiday occurs will depend upon whether the employee takes in whole weeks or not. If, for example, an employee works Monday through Friday and Independence Day falls on a Thursday:

• If the employee takes leave for the whole workweek that includes Independence Day, the employee uses one week of leave and not 4/5 of a week despite not being required to report to work on the Thursday holiday.
• If, however, the employee takes leave in less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. If the employee needs FMLA leave only for Tuesday through Thursday, the employee would use only 2/5 of a week of FMLA leave (Tuesday and Wednesday) because the employee is not required to report for work on the holiday.

The reasoning

The WHD's reasoning behind this is that holidays regularly occur during normal workweeks and employers should count them when they fall within weekly blocks of leave. On the other hand, where employees take leave in less than a full workweek, their FMLA leave entitlement should only be diminished by the amount of leave actually taken.

The actual workweek includes the day of the holiday. Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would incorrectly reduce the employee's leave entitlement, because the employee would have to use a larger amount of FMLA leave than needed. Having an employee use more FMLA leave than needed is a violation of the law.

Key to Remember: Whether an employer counts holidays as FMLA leave will depend upon whether an employee is taking the leave in full weeks or in less than full weeks.