The Dept. of Labor (DOL) recently clarified how to calculate time off under the Family and Medical Leave Act (FMLA) during a week that includes a holiday.
Opinion Letter FMLA 2023-2-A looks at what happens when an employee takes leave for less than a full workweek – and that leave is intermittent.
Less than a full workweek
When an employee takes a full work week of FMLA leave during a week with a holiday, you’d count the entire work week as FMLA leave. However, if that person takes less than a full work week of FMLA leave, you wouldn’t count the holiday as FMLA leave. Note: There’s an exception if someone was scheduled and expected to work on a holiday and instead took FMLA leave.
The opinion letter zoomed in on intermittent leave. The question was whether, in a week with a holiday, an employer’s FMLA-usage calculations should include the employee’s:
• usual work week (a work week without a holiday) or
• reduced work week (the usual work week minus one day)
Let’s say an employee normally works a five-day work week – Monday through Friday – and that person takes one day of intermittent FMLA leave (on Tuesday) during a week with a holiday (on Wednesday).
According to the DOL guidance, the employee would have used one-fifth of a work week of FMLA leave. That’s one day of leave out of five days (the usual work week).
Otherwise, if an employer’s calculation was one day of leave out of four days (the reduced work week), the employee would have used one-fourth of a work week of FMLA leave. That’d be a larger amount of FMLA leave than the employee needed, meaning the employee’s leave entitlements would be incorrectly reduced.
In addition to intermittent leave, the same principle would apply to reduced-schedule leave.
More info: bit.ly/fmla673