On May 30, 2023, the DOL issued an opinion letter that affirms its prior guidance regarding how to calculate the amount of FMLA leave entitlement when a workweek includes a holiday. “Workweek” is defined under the FMLA as the employee’s normal schedule (hours/days per week) prior to the start of FMLA leave.
The opinion letter confirms that when a holiday falls during a week when an employee is taking a full workweek of FMLA leave and is not expected to work on the holiday, the entire week is counted as FMLA leave. For example, an employee who works Monday through Friday and takes leave for a week that includes a holiday would use one week of leave and not 4/5 of a week even though the employee used only four days of FMLA leave that week.
When an employee takes FMLA leave on an intermittent or reduced schedule during a week in which there is a holiday, the holiday generally does not count against the employee’s FMLA leave entitlement if the employee would not be required to work on the holiday. In other words, where leave is taken in less than a full workweek, the actual workweek includes the day of the holiday. Accordingly, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday). For example, an employee who normally works Monday through Friday takes leave for a week that includes a holiday on Monday and takes FMLA leave on Tuesday and works Wednesday through Friday. In this situation, the employee’s FMLA leave allotment is calculated as 1/5 of the week instead of 1/4 of the week, which ensures that the employee’s leave entitlement is protected and not reduced due to the holiday.
In summary, under the FMLA, the employee’s normal workweek is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for specified family and medical reasons. If a holiday falls during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not count towards the FMLA leave entitlement calculation when the employee was not required to work on the holiday.
Employers who are subject to FMLA should review their current FMLA leave administration practice and leave policy to ensure that their employees’ FMLA leave is calculated according to these rules and communicated with the employees clearly.
DOL Opinion Letter FMLA 2023-2-A »
PPI Benefit Solutions does not provide legal or tax advice. Compliance, regulatory and related content is for general informational purposes and is not guaranteed to be accurate or complete. You should consult an attorney or tax professional regarding the application or potential implications of laws, regulations or policies to your specific circumstances.
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