Pop quiz: An employee takes FMLA leave for less than a full week – and that week includes a holiday.
How do you calculate the amount of FMLA leave used?
Are you stumped? You’re not alone.
But lucky for you, the Department of Labor recently issued an opinion letter that answers the question.
Before we get to a full discussion of the letter, let’s review some general FMLA principles.
First, a few basics
The FMLA gives eligible employees up to 12 weeks of unpaid leave in a 12-month period for qualifying reasons, such as a serious health condition of the employee. The amount of available leave expands to 26 weeks to care for a covered service member.
FMLA leave does not need to be taken all at once. Instead, there are circumstances under which FMLA leave may be taken intermittently or on a reduced leave schedule.
Employees do not accrue FMLA leave at a particular hourly rate. Instead, an employee’s actual workweek determines their leave entitlement. The law provides leave by the week, not by the hour. And since workweeks consist of different numbers of hours for different employees, not all employees get the same number of leave hours.
When an employee takes less than a full week of leave, the amount used is determined as a proportion of their workweek.
It’s weeks, not hours
Let’s use an example, taken from a DOL fact sheet.
Suppose an employee normally works 30 hours a week but takes 10 hours of FMLA leave for the week. In that case, the employee used one-third of a week of FMLA leave.
Another quick and basic point: FMLA leave does not include any time that an employee is not scheduled to work. And one more: Required overtime hours that are not worked for an FMLA-qualifying reason may be counted as FMLA leave.
OK, back to our question: How is leave calculated if an employee takes less than a full week of FMLA leave during a week that includes a holiday?
Is the fraction of the workweek used to calculate the amount of leave used a fraction of their usual workweek — or a fraction of the usual workweek less the holiday?
Stated another way, if an employee’s normal workweek is five days – and they take one day of FMLA leave during a week with a one-day holiday – have they used one-fourth of a workweek or one-fifth?
Drum roll, please …
The answer, the letter explains, is that in that case the employee has used one-fifth of a workweek of FMLA leave. To calculate the amount used as one-fourth of a week of leave would interfere with the employee’s FMLA rights, the letter says.
“Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee’s leave entitlement because the employee would have to use a larger amount of FMLA leave than needed,” the letter advises.
The answer changes if the employee was scheduled and expected to work on the holiday, the letter adds. In that case, the holiday is counted as FMLA leave if the employee uses FMLA leave for that day.
If a holiday falls during a week that an employee takes the full week for FMLA leave, then the entire week counts as FMLA leave, the letter adds.
Let’s sum it all up in a nutshell: If an employee uses FMLA leave for part of a workweek that includes a holiday, the holiday does not reduce their leave entitlement – unless they were required to work on the holiday.