May 30, 2023

Happy Holiday! But What About FMLA?

Pete and Repeat were sitting on a wall. Pete fell down. Who was left?

That is sort of how I felt when I read the U.S. Department of Labor’s May 30th Opinion Letter about how “how to calculate the amount of leave used when an employee takes leave under the Family and Medical Leave Act (FMLA) during a week with a holiday.”

It was an interesting question, and the answer is not surprising. It is the same as when the DOL addressed this in 2008, in updated FMLA regulations. It makes me wonder, however, if others have wondered the same. So, here we go; let’s refresh our memory.

The question was, “whether the 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).”

The answer is the latter. Now, here’s the practical example. Let’s say an employee regularly works Monday through Friday. A holiday is on a Friday that the employee would not normally be required to work. If the employee needs FMLA leave Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave (Wednesday and Thursday) because the employee is not required to report for work on the holiday. Said another way, the holiday does not count against the employee’s FMLA entitlement.

Wait! Is there an exception to every rule? There is to this one. What if the same employee needed FMLA leave for that entire workweek, Monday through Friday, would the holiday count against the employee’s FMLA entitlement? Yes! “[T]he employee would use a full week of FMLA leave despite not being required to report to work on the Friday holiday.”

If this is not how you have been tracking and counting FMLA use, talk to your company’s legal counsel about making retroactive corrections.  Now, you are ready to comply for the next holiday; Happy Independence Day!