Last month, the U.S. Department of Labor (DOL) issued Opinion Letter FMLA2023-2-A, which clarifies how holidays that occur during an employee’s leave under the Family and Medical Leave Act (FMLA) impact the employee’s leave entitlement. Generally, it depends on whether the employee is taking FMLA for a full workweek or if the leave is on an intermittent or reduced schedule basis that is less than the full workweek.
What is a “workweek”?
Under the FMLA, an employee’s leave entitlement is based on the employee’s actual workweek. This includes the employee’s regularly scheduled days and hours of work. Therefore, if an employee regularly works 50 hours per week, their leave entitlement is based on a 50-hour week. Similarly, if an employee regularly works 30 hours per week, that employee’s entitlement is based on a 30-hour week. These calculations are particularly relevant if an employee is taking intermittent or reduced schedule leave.
Full Workweek
If there is a holiday during a week that an employee is taking the full workweek as FMLA leave, the entire week counts against the employee’s 12-week (or 26-week) entitlement.
Intermittent/Reduced Schedule Leave
If the employee is taking less than a full workweek of FMLA leave, the holiday is not counted against the employee’s leave entitlement unless the employee was scheduled and expected to work on the holiday.
Example & Rule
In the opinion letter, the DOL emphasizes that its position is consistent with past guidance and application of the law. It referenced a notice of proposed rulemaking from 2008 to provide the following example:
[F]or an employee with a Monday through Friday work week schedule, in a week with a Friday holiday on which the employee would not normally be required to report if the employee needs FMLA leave only for Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave because the employee is not required to report for work on the holiday. However, if the same employee needed FMLA leave for Monday through Friday of that week, the employee would use a full week of FMLA leave despite not being required to report to work on the Friday holiday.
The clarification was codified in 29 C.F.R. § 825.200(h): “However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.”
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