November 24, 2020

FMLA, EFMLEA & Holiday Pay

This year brings a new twist to the annual flurry of questions about if and when an employee who is out on FMLA and on a holiday does/not use the holiday as FMLA leave.  Let’s review.

If an employee is out the full workweek in which the holiday occurs, the holiday has no effect on the counting of FMLA leave. The full week counts against the employee’s FMLA entitlement.

However, if an employee is using FMLA leave intermittently or on a reduced schedule in the workweek in which the holiday occurs, the holiday is not counted against the employee’s FMLA entitlement, unless the employee was scheduled and otherwise expected to work on the holiday.

And, if you close your business operations for the holiday, such as a shut-down during the week of Christmas, the days you are closed to not count against an employee’s FMLA entitlement.

Now, add the Emergency Family and Medical Leave Expansion Act (EFMLEA) under the Families First Coronavirus Response Act (FFCRA). If an employee is using EFMLEA leave because his or her child’s day care or school is closed for COVID-19 reasons, do the same rules apply?

The DOL has not yet directly answered this question. One might assume so.  Read the title of the law, it is the FMLA “Expansion” Act. It simply expanded the already existing FMLA, giving employees two new qualifying reasons for taking FMLA-covered leave.  Where the EFMLEA did not modify the FMLA, the FMLA rules would apply.

So, keep these in mind when processing your payroll for Thanksgiving week.  Refer to DOL Fact Sheet #28I Calculation of Leave Under the FMLA for a refresher. Talk to your company’s employment counsel to review various scenarios you might in play now.

Then, register and join us on December 16th from 3:00 – 4:15 ET for a FREE webcast, “FMLA Update 3.0.” Click here for more information.