Blogs

With the Fourth of July upon us, it is important that employers be clear on how to count the amount of leave used when a holiday occurs in a week when an employee takes leave under the Family and Medical Leave Act (FMLA). A May 30, 2023, Department of Labor (DOL) opinion letter provides guidance. 

The FMLA allows eligible employees to take up to 12 workweeks of unpaid job-protected leave (26 workweeks of military caregiver leave) in a 12-month period for qualifying family and medical reasons, as explained in this Employers Council whitepaper. FMLA leave can be taken as a continuous block of time, intermittently, or by reducing the amount of time the employee works each day. 

If a holiday occurs in a workweek in which an employee is taking a full workweek of FMLA leave, the entire workweek counts against the employee’s FMLA entitlement. However, if an employee takes less than a full workweek of FMLA leave in a week in which a holiday occurs, the amount of FMLA leave that counts against the employee’s FMLA entitlement is the percentage of the employee’s regular workweek taken.  

It is important to understand that the determination of how much FMLA leave has been used is dependent on the employee’s regularly scheduled workweek. So, for example, the percentage of the workweek used if an employee takes five hours of FMLA leave will be different for an employee regularly scheduled to work 40 hours per week (12.5% of the workweek) than for an employee regularly scheduled to work 30 hours per week (16.67%) or 50 hours per week (10%). An employer may convert these percentages to hours if the result equitably reflects the total hours in the employee’s regularly scheduled workweek. 

The May 30 DOL opinion letter specifically addressed whether the calculation of FMLA leave taken during a week that includes a holiday is based on an employee’s regularly scheduled workweek including the holiday or whether the calculation excludes the holiday from the workweek before the calculation is made. So, for example, if an employee is regularly scheduled to work 40 hours per week Monday through Friday, and the Fourth of July falls on Tuesday, as it does this year, and an employee takes eight hours of FMLA leave on Thursday, is the proportion of the workweek taken 8/40ths (20%) or 8/32nds (25%)?  

The DOL advised that when FMLA is taken as a fraction of a workweek, the regular workweek includes the holiday. The DOL explained that excluding the holiday from the workweek when calculating the percentage of FMLA leave taken would impermissibly reduce the employee’s FMLA entitlement because the employee would be required to use a larger proportion of a regular workweek than needed. By including the holiday in the workweek when an employee works part of the week and takes FMLA leave for part of the week, the holiday does not reduce the employee’s FMLA entitlement unless the employee was scheduled to work on the holiday and takes FMLA leave on that day.  

If you are a consulting or enterprise member and have questions about calculating FMLA leave, Employers Council attorneys and HR consultants are available to help. Please contact us at info@employerscouncil.org.