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Legal Updates

Counting Holidays During FMLA Leave: Clarification From The DOL

On May 30, 2023, the U.S. Department of Labor (“DOL”) issued a new opinion letter clarifying the method to be used by employers in calculating the amount of Family and Medical Leave Act (“FMLA”) leave used by an employee when a holiday falls during a week when the employee is taking leave under the FMLA. While this opinion letter does not break new legal ground, it affirms previous guidance issued by the DOL and serves as an important reminder to employers to ensure that they calculate employees’ FMLA leave time correctly.

Calculating FMLA Leave

Under the FMLA, eligible employees of covered employers (generally, those with at least 50 employees located within a 75-mile radius) are entitled to take up to twelve workweeks of unpaid, job-protected leave in a twelve-month period for certain qualifying family and medical reasons, and up to 26 workweeks of leave in a twelve-month period to care for a covered military servicemember.

An employee’s leave entitlement under the FMLA is determined by the employee’s regular workweek. For instance, an employee who regularly works a 40-hour workweek is entitled to twelve 40-hour weeks of FMLA leave. Similarly, an employee who regularly works a 30-hour workweek is entitled to twelve 30-hour workweeks of FMLA leave.

FMLA leave may be taken either on a continuous basis or, in certain circumstances, on an intermittent (i.e., in separate blocks of time) or reduced-schedule basis (i.e., with fewer hours than usual worked in a day or week). However, only the amount of leave actually taken may be counted against an employee’s FMLA leave entitlement. Thus, when an employee takes FMLA leave for less than a full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek.

Specifically, the number of hours of FMLA leave taken by an employee in a workweek is divided by the employee’s regular weekly work hours to determine the proportion of the FMLA workweek used. For example, an employee who normally works thirty (30) hours a week but works only twenty (20) hours in a week because of FMLA leave would use one-third of a week of their FMLA leave entitlement.

Opinion Letter

The DOL’s opinion letter clarifies how a holiday is to be counted against an employee’s FMLA leave entitlement, based on the employee’s regular workweek and the type of leave taken.

If an employee is using a full workweek of FMLA leave during a week in which a holiday falls, and the employee would not otherwise be expected to work on that holiday, then the entire workweek is counted as FMLA leave. On the other hand, if an employee takes less than a full workweek of FMLA leave or takes FMLA leave on an intermittent or reduced-schedule basis during a week in which there is a holiday, the holiday generally does not count against the employee’s FMLA leave entitlement, unless the employee normally would have been required to work on the holiday and instead uses FMLA leave.

On a related issue, employers should be aware that if an employee’s FMLA leave falls during a period in which the employee would not be scheduled to work due to a hiatus in the employer’s business activities – such as a school’s closure for summer break or a company’s shutdown during the winter holidays – the period in which the employer’s operations are suspended does not count against the employee’s FMLA leave entitlement.

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If you have questions about your organization's responsibilities under the FMLA or similar state leave laws, please feel free to contact one of our experienced employment lawyers.