FMLA and Holidays: What counts?

The Department of Labor’s Wage and Hour Division issued a rare opinion letter last week (on May 30, 2023) responding to an inquiry about the calculation of Family and Medical Leave Act (FMLA) leave when the leave is taken during a week that has a holiday. I say it’s rare because, since the Biden Administration took the reins of Government, there have only been two opinion letters of any kind—and none about the Fair Labor Standards Act (“FLSA”). Of course, we’ve complained about that before, but I digress…

The question that prompted the opinion letter was “how to calculate the amount of FMLA leave used where an employee takes FMLA leave for less than a full week.” Opinion at 1. And, more particularly, the question was “whether the employee taking leave during a week that includes a holiday is using a fraction of the employee’s usual workweek (a workweek without a holiday), or if the employee is using a fraction of a reduced workweek (the employee’s usual workweek less one day due to a holiday).” Opinion at 2.

This question matters because FMLA leave is measured in weeks, not hours. Specifically, employees are entitled to job-protected, but unpaid, leave up to 12 weeks a year for FMLA-eligible reasons (26 weeks of leave when the employee is caring for a covered service member). Where an employee is working a reduced schedule, you calculate the amount of FMLA leave as a proportion of the week. See Opinion at 1 (citing 29 CFR § 825.205(b)(1)). For example, if the employee takes off 16 hours a week rather than being out for a full 40-hour workweek, then the employee has used 40% of that week for FMLA purposes.

This brings us to how the scenarios play out in a holiday week. For employees who are on leave for entire workweeks, the employee will be charged (if you will) for the full week whether the week contains a holiday or not. See Opinion at 2 (citing 29 CFR § 825.200(h)). The reduced-schedule employee, however, is treated a little differently. Using the 16-hours example I set forth above, the proportion of the week used will not change regardless of whether the number of hours an employee would have worked was reduced by the holiday. So, the calculation of the proportional FMLA week remains 16 divided by 40 and is NOT 16 divided by 32. So, the FMLA usage remains 40% of the workweek and doesn’t increase to 50% simply because there was a holiday.

So, the bottom line of the opinion is summarized thus:

[U]nder the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. 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. Therefore, 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).

Opinion at 4 (emphasis added).

The FMLA is not a frequent topic in this forum; however, this particular opinion letter interested me because it brought to mind the confusing interplay of rules that bedevil federal contractors when it comes to implementing vacation leave, sick leave, and holiday benefits. The fact that an employee is using FMLA leave does not change their entitlement to vacation and holiday benefits, whatever those benefits may be under a given SCA Wage Determination. And looking at holiday benefits in isolation, the general rule provides that an employee who works or receives paid leave during a workweek in which a holiday falls, the employee will be entitled to holiday pay. This doesn’t change even if the employee is working an FMLA-reduced schedule.