Calculating FMLA Leave: Factoring in holidays within the workweek
You are likely broadly familiar with the application of the Family and Medical Leave Act (FMLA) when your employees have needed to take time off for various reasons, but a newly released opinion letter from the Department of Labor on May 30 has responded to an issue that perhaps you as an employer have grappled with; that is, how to treat FMLA leave during a holiday workweek.
Generally, the FMLA entitles eligible employees of covered employers to take unpaid job-protected leave for qualifying family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees may take up to 12 workweeks of leave in a 12-month period for various qualifying reasons, and up to 26 workweeks of leave during a single 12-month period to care for a covered servicemember. Under certain circumstances, an employee may use FMLA leave intermittently, that is, in separate blocks of time, or on a reduced leave schedule, by reducing the time worked in the day or week. When an employee takes FMLA leave for less than one full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek.
The short answer for how to calculate leave during a workweek that has a holiday fall within it: The Labor Department letter tells us that the holiday does not count against an employee's FMLA entitlement if the employee works part of that week. Explained a different way, when 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. By way of illustration, an employee who works Monday through Friday and takes leave for a week that includes Memorial Day on Monday would use one week of leave (40 hours) and not 4/5 of a week. However, when a holiday falls during a week 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 and expected to work on the holiday and used FMLA leave for that day. Thus, in this scenario if the employee worked a full day on Tuesday, but then was out Wednesday through Friday due to a medical condition, FMLA leave taken would be 3/5 of a week (24 hours).
Keep in mind, the employee's actual workweek is the basis of leave entitlement; in other words, the FMLA calculation should reflect the employee’s actual work schedule which may not necessarily be a regular 40-hour workweek. In addition, the holiday calculation only comes into play for those holidays that the employer has designated for the workplace. Not all employers recognize every federal or state holiday.
The bottom line: compliance is key. Employers who make miscalculations could pay the price in the long run, so make sure your leave administrator is up to speed on the math. The consequences? Civil lawsuits for FMLA violations could result in steep amounts of lost back pay, lost front pay, liquidated damages and attorney fees. Questions? Rosasco Law Group can help.
