The Department of Labor recently issued an opinion clarifying when a holiday counts against an employee’s leave under the Family Medical Leave Act (FMLA). Although the opinion isn’t ground-breaking (indeed it restates what the regulations say and how the Act has been enforced), it’s still a good reminder of how to properly calculate intermittent FMLA leave.

Covered employers must provide eligible employees with up to 12 workweeks of unpaid job-protected leave in a 12-month period for qualifying family and medical reasons with continuation of group health insurance coverage. Leave may be taken in one continuous block or, under certain circumstances, intermittently. Intermittent leave may be in separate blocks of time or on a reduced schedule that reduces the time worked in the day or the week. Calculating intermittent leave sometimes presents employers with a challenge. When an employee’s leave is for less than a full workweek, the amount of leave is used to determine the entitlement as a proportion of the employee’s actual workweek. For example, an employee working 40 hours a week who takes eight hours off, uses one-fifth of a week of FMLA leave.

What happens when there is a holiday?

For an employee who takes the entire workweek off, the answer is simple – the entire week is counted as FMLA leave. But for an employee taking less than the entire workweek for leave, the DOL has confirmed how employers should treat the holiday. Where an employee takes FMLA leave in increments of less than one week during a week that includes a holiday, the holiday generally does not count against the employee’s FMLA leave entitlement. The exception to this general rule is when the employee is scheduled and expected to work a holiday but uses FMLA leave for that day.

The rationale for this rule is that the holiday will have no effect on a week where an employee takes the full week of leave but may impermissibly impact the amount of leave entitlement available to an employee who takes less than a full week, depending on how it is counted. This is consistent with the requirement that the use of intermittent or reduced schedule leave “shall not result in a reduction in the total amount of leave to which the employee is entitled . . . beyond the amount of leave actually taken.”

The Employment Team at Rhoades McKee is always ready to assist employers in ensuring compliance with the FMLA and other employment laws.

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