Q. Are we required to pay holiday pay to employees who are on FMLA leave? Does the holiday extend an employee’s FMLA time off?

A. With the holidays fast approaching, these are timely questions! With respect to holiday pay, the FMLA regulations state that employers must follow their own established policies in place for other forms of leave. So, if the employer’s policy is that employees on any type of unpaid leave of absence are not eligible for holiday pay, then no holiday pay is required for employees on FMLA leave during the holiday week. On the other hand, if your company pays holiday pay to employees who are on vacation the week of the holiday, for example, and the employee is substituting vacation for unpaid leave, then the employer must pay holiday pay to the employee on FMLA leave. It is therefore critical that the employer’s policy clearly states whether and under what conditions holiday pay will be paid, including when an employee is on leave. If you do not have a policy, or your policy is not clear, now would be a good time to put an updated policy in place.

Even if the employee is entitled to holiday pay, the fact that the employee receives pay for a holiday does not extend the employee’s leave entitlement. Thus, if the employee is paid for Christmas Day, for example, the employee does not then receive 12 weeks and one day of FMLA leave. The entitlement is still 12 weeks.

The answer to your question about whether a holiday extends an employee’s leave entitlement depends on several factors. If the holiday occurs within the week that an employee is out on leave for the entire week, or longer, then the entire week is counted as a week of FMLA leave, regardless of the fact that a holiday happened to fall during that week. If an employee is using FMLA leave in increments of less than one week, however, the holiday will not “count” against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work on the day of the holiday. Moreover, if your company closes for one or more weeks (i.e., a school closing two weeks for winter break), the days the employer is closed for business do not count against the employee’s FMLA leave entitlement.

Let’s assume, for example, that your Company is closing on Monday, December 26 for Christmas this year. If your employee is on FMLA leave for the entire week of December 26, then the December 26 holiday would count as an FMLA day. Now, let’s say that the employee normally works on Mondays and takes intermittent leave on Tuesdays and Wednesdays. Under that scenario, you may not count December 26 as FMLA leave. The employee should be paid for the holiday (assuming he or she is otherwise eligible for holiday pay under your policy). If your business was closed for the entire week of December 26, however, then that week would not count against the employee’s FMLA entitlement.