The Department of Labor (“DOL”) has issued Opinion Letter FMLA 2023-2-A (the “Letter”) to clarify how the amount of leave used is calculated when an employee takes Family and Medical Leave Act (“FMLA”) leave for less than a full week during a week that includes a holiday.
Background. The DOL issued the Letter in response to a request for information on whether an employee who takes leave during a holiday week is: (i) using a fraction of the employee’s usual workweek (i.e., as if the workweek did not include the holiday); or (ii) using a fraction of the reduced workweek (i.e., the employee’s usual workweek less the holiday day).
Law. In general, the FMLA entitles eligible employees to up to twelve “workweeks” of leave in a twelve-month period: (i) for one’s own “serious health condition”; (ii) to care for a seriously ill or injured spouse or dependent; (iii) for the birth, adoption or placement of a child; or (iv) to deal with “exigencies” related to their spouse’s military deployment. An eligible employee may take intermittent FMLA which consists of separate blocks of leave for a single illness or injury.
Opinion Letter FMLA 2023-2-A. The Letter explains that, if a holiday falls during a week when an employee takes a full workweek of FMLA leave, then a full workweek is counted as FMLA leave.
As mentioned above, under certain circumstances, an employee may use FMLA leave intermittently or on a reduced leave schedule by reducing the number of hours worked during a day of the week. The Letter explains that the DOL has taken a consistent position that when 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 to work on the holiday and used FMLA leave for that day. The Letter notes that, “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 concludes that, “under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement.” If the employee is not scheduled to work on the holiday, the fraction of the workweek of leave used is the amount of FMLA leave taken (not including the holiday) divided by the total workweek (including the holiday).