FMLA and holiday pay | Intermittent FMLA leave for holiday weeks

The Department of Labor (DOL) has attempted to clarify how to calculate Family Medical Leave Act (FMLA) leave during weeks with holidays in a recently issued opinion letter.

The FMLA allows qualifying employees to take up to 12 workweeks of unpaid, protected leave in a 12-month period. Usually, leave is accounted for in full weeks. But employees also may take leave on an intermittent basis or work part-time and use FMLA leave for the remainder of the normal work time.

When an employee takes FMLA leave for less than one full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek, and requires employers to convert weeks to hours to properly calculate and track FMLA usage.

The DOL issued the opinion letter in response to an employer asking how to correctly account for FMLA leave when an employee works during part of a week with a holiday week and only uses FMLA leave intermittently.

The DOL explained that when a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. For example, if an employee normally works Monday through Friday and uses FMLA leave the entire week of Memorial Day, that will count for one full week of leave and not 4/5 (80%) of a week.

However, when a holiday falls during a week when an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave (unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day). In such circumstances, the DOL wrote, the holiday generally does not count against the employee’s leave entitlement. Instead, the fraction of the workweek of leave used would be calculated as the amount of FMLA leave taken (which does not include the holiday) divided by the total workweek (which does include the holiday).

“Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee’s leave entitlement, because the employee would have to use a larger amount of FMLA leave than needed,” the DOL stated. “Calculating the amount of leave used in this way would be an interference with the employee’s FMLA rights.”