In an opinion letter published this week, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) clarified how employers should calculate an employee’s Family and Medical Leave Act (“FMLA”) leave entitlement when the leave is taken during a week that includes a holiday.
The FMLA regulations are clear that when an employee takes a full week of FMLA leave, the entire week counts as FMLA leave, regardless of whether or not a holiday falls during that week and whether the employee was scheduled and expected to work on that holiday. The DOL clarified that when an employee takes leave in increments of less than one week, however, the employer must calculate the leave as a proportion of the employee’s actual workweek and if a holiday falls within that week, it may change the calculation.
For example, if an employee normally works 40 hours in a workweek and takes 8 hours of FMLA in a week, then the employee would use 1/5 of a week of FMLA. When a paid holiday falls within the workweek, however, the denominator for purposes of calculating FMLA leave is based on whether the employee was scheduled and expected to work on the holiday. If the employee was scheduled and expected to work on the holiday, then the holiday is counted as a regular workday for purposes of the denominator (so for a regular Monday through Friday schedule, the denominator would be 5). In the example above, if the employee took one day of FMLA, then they would have used 1/5 of a week of FMLA. If a holiday falls in that workweek and the employee was not scheduled and expected to work on that holiday, then the holiday is not counted in the calculation, the denominator would be 4, and the employee would have used 1/4 of a week of FMLA.
The same calculation applies if an employee is on a reduced work schedule using FMLA or part of each workday. For example, if an employee took 4 hours of FMLA leave during each 8-hour workday, if a holiday were to fall during the workweek and the employee was not scheduled and expected to work that holiday, then the holiday should not be counted against the employee’s FMLA leave entitlement, and the employee would only be charged with 16 hours of FMLA. The DOL explained that its rationale for this distinction is that when an employee is taking less than a full workweek of leave, the employee’s FMLA leave entitlement should only be diminished by the amount of leave the employee actually takes.
Employers should review their FMLA leave calculation practices to ensure they follow the DOL’s guidance.