(Not Terribly Useful) Guidance from the DOL on the FMLA and Holidays

By Fiona Ong - Shawe Rosental LLP

May 30, 2023

Opinion letters from the U.S. Department of Labor are pretty unusual, so I get really excited when they issue one. And typically, the letter addresses an issue of some significance for employers. So I was giddy (GIDDY, I say!) when I saw a new one had just dropped – until I actually read it. Three times, because I thought I was missing something. But really, it just affirms what I already thought about the Family and Medical Leave Act and holidays. At least it’s a good reminder of how to deal with holidays under the FMLA.

As FMLA-covered employers should know, the FMLA provides eligible employees with twelve weeks of unpaid leave for their own or a family member’s serious health condition, and for certain family military service-related reasons. The leave week is based on the employee’s regular schedule – an employee who normally works 40 hours a week gets twelve 40-hour weeks (i.e. 480 hours), while someone normally working 30 hours a week gets twelve 30-hour weeks (or 360 hours), etc. Employees may use the leave in a single block or intermittently in multiple smaller blocks or on a reduced schedule (if medically required). Which is why it’s important to convert the workweeks into hours.

Now the DOL’s regulations implementing the FMLA provide that if a holiday falls during a week that an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave. In other words, the employee uses an entire one of their 12 weeks. But if a holiday falls in a week when the employee is not using a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled to work the holiday and used FMLA leave that day.

An employer (who thinks too hard) asked how FMLA leave should be calculated in a holiday week – are they using a fraction of the regular workweek (without a holiday) or a fraction of a reduced workweek (the regular workweek minus the holiday)? The DOL understandably seems a little perplexed by the question, noting that there’s really no conflict in the regulations as to this point. But then it goes on to use a lot of words to explain why there is no conflict, pulling the following example from the commentary to the 2008 proposed revision to the regulations:

[I]f an employee needs less than a full week of FMLA leave, and a holiday falls within the partial week of leave, the hours that the employee does not work on the holiday cannot be counted against the employee’s FMLA leave entitlement if the employee would not otherwise have been required to report for work on that day. If an employee needs a full week of leave in a week with a holiday, however, the hours the employee does not work on the holiday will count against the employee’s FMLA entitlement. Accordingly, for an employee with a Monday through Friday work week schedule, in a week with a Friday holiday on which the employee would not normally be required to report, if the employee needs FMLA leave only for Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave because the employee is not required to report for work on the holiday. However, if the same employee needed FMLA leave for Monday through Friday of that week, the employee would use a full week of FMLA leave despite not being required to report to work on the Friday holiday.

The DOL then summarizes how holidays should be treated in a week where the employee takes less than a full week of FMLA leave: if the employee was not expected or scheduled to work on the holiday, 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).

In other words, employees get 12 regular workweeks worth of FMLA leave – and employers should convert that into hours (e.g. 12 weeks of 40 hours is 480 hours). If the employee is using less than a full week at a time, employers should count only the hours of leave (e.g. for a 40-hour a week employee, 2 and 1/2 days = 20 hours) actually used, regardless of whether or not there’s a holiday that week. If the employee is scheduled to work the holiday but calls out for an FMLA reason, count the hours they would have worked as FMLA. If they are not scheduled to work the holiday, don’t count those hours as FMLA.

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