Global Compliance Desk – United States

US: Labor Department Clarifies Calculation of FMLA Leave Factoring in Holidays

The U.S. Department of Labor (DOL) has issued an opinion letter clarifying how to calculate the amount of leave used under the Family and Medical Leave Act (“FMLA”) when an employee takes FMLA leave during a week that includes a statutory holiday.

The main clarification the letter addresses is the question of whether an employee taking FMLA leave during a week inclusive of a holiday should have leave calculated as –

• • a fraction of their standard workweek; or
  • a fraction of a decreased workweek (i.e., their regular workweek minus one day for the holiday).

The DOL advises that the computation should be based on a fraction of the employee’s usual, full workweek.

Background – The FMLA entitles an eligible employee to take up to 12 work weeks of leave in a 12-month period for, among other qualifying reasons, a serious health condition that makes the employee unable to perform the functions of the employee’s position. An eligible employee can also take FMLA leave intermittently, which is in separate blocks of time, or on a reduced schedule leave, which reduces the time worked in the day or week.

The calculation of an employee’s use of FMLA leave is specific to the employee’s work schedule.

The US Wage and Hour Division (WHD) explained in the letter that when a statutory holiday falls during a week that an employee takes a full workweek of FMLA leave, the entire week is counted as FMLA leave.

For example, if an employee works 40 hours per week, Monday through Friday, and takes FMLA leave for that entire week, a holiday falling on a Monday will not reduce the amount of leave as measured in workweeks—a full workweek (5 days) will be counted against their 12 weeks of leave, instead of 80% of a workweek if the holiday were to be counted.

In contrast, when a holiday falls during a week where an employee is taking less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day. In such circumstances, the DOL wrote, the holiday generally does not count against the employee’s leave entitlement. Instead, the fraction of the workweek of leave used would be calculated as the amount of FMLA leave taken.

For example, if an employee normally works 40 hours in a workweek and takes 8 hours of FMLA in a week (1 work day), then the employee would use 1/5 of a week of FMLA. When a paid holiday falls within the workweek, however, the duration 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 calculation of the number of days of leave (so for a regular Monday through Friday schedule, the total duration would be 5).

The DOL explained in its opinion that the rationale behind 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.

Conclusion
In conclusion, under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. (e.g., an employee who normally works 40 hours per week is entitled to 480 hours of FMLA leave—40 hours multiplied by 12 weeks). If a holiday occurs 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 reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday.

Employers should review their FMLA leave calculation practices to ensure they are following the DOL’s guidance on the same.