Department of Labor Releases Opinion Letter on FMLA Leave and Holidays
On May 30, 2023, the United States Department of Labor (DOL) released an Opinion Letter regarding the interaction between FMLA and company holidays. Specifically, the employer wished to know how to determine how much FMLA leave is counted against an employee if that employee is on FMLA leave during a week that contains a holiday (and the FMLA leave includes that holiday).
The DOL states that the actual workweek (the number of hours an employee works in a week) is the starting point for determining leave entitlement. An employee who works 40 hours per week and takes between one and four days (8 hours per day) of FMLA leave during a week with a holiday will be considered to have taken 1/5 - 4/5 of a week of FMLA leave for leave-counting purposes. However, an employee who is taking a full week of FMLA leave during a week with a holiday would be taking a full week of FMLA leave for leave-counting purposes (rather than 4/5 of a week). The Opinion Letter offers a clarifying example:
- An employee who works 40 hours per week and must take Wednesday-Friday off for FMLA purposes would be taking 2/5 of a week of FMLA leave if a holiday falls on a Friday of that week (Only Wednesday and Thursday are credited against the employee for FMLA leave taken).
- An employee who works 40 hours per week and must take Monday-Friday off for FMLA purposes would be taking a full week (5/5) of FMLA leave even if a holiday falls on a Friday of that week (all 5 days of the week are credited against the employee for FMLA leave taken).
This is a subtle distinction, but one that needs to be highlighted as it is not intuitive and needed to be affirmatively stated by the DOL. Employers should remember this Opinion Letter when determining employee FMLA leave use in order to ensure an accurate accounting of employee leave entitlements.
You can read the entire Opinion Letter HERE.