The ELA is proud to welcome our newest member firms: Potter, Anderson & Corroon in Delaware and Morais Leitão in Portugal! 
The ELA is proud to welcome our newest member firms: Potter, Anderson & Corroon in Delaware and Morais Leitão in Portugal! 

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DOL Says Holiday Weeks Could Be a Potential FMLA Land Mine

Submitted by Firm:
Steptoe & Johnson PLLC - Western Pennsylvania
Article Type:
Legal Update
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For many, Labor Day weekend represents the last bastion of summer. It also ushers in a season of holidays, celebrations, and shortened workweeks throughout fall and winter. However, employers that deal with the year-round hardship of the habitual Friday/Monday Family and Medical Leave Act (FMLA) users know that holiday weeks are all too often vulnerable to the same type of FMLA abuse. Holidays, though, have a unique problem in the FMLA context.

Earlier this year, the Department of Labor (DOL) published an opinion letter cautioning employers to be wary of how and when to calculate an employee’s FMLA leave during a holiday week. Like most other FMLA-induced headaches, the answer to this question is not necessarily intuitive, so here’s what employers need to know about FMLA leave usage during a holiday week.

When is an Employee’s Absence During a Holiday Week Counted as an FMLA Absence?

The answer to this question is pretty simple: If the employee takes a full workweek of FMLA leave, the holiday is also counted as part of the employee’s FMLA leave.

Hypothetical No. 1: An employee who works Monday through Friday takes the entire week off due to arthritic pain, beginning with Labor Day Monday. In this scenario, the entire week is counted as FMLA leave.

By contrast, if the employee takes less than a full workweek of FMLA leave, the holiday is not counted as FMLA leave unless the employee was scheduled to work the holiday and opted to use leave on that day. This is illustrated in the adapted hypothetical below:

Hypothetical No. 2: An employee who was not scheduled to work on Labor Day Monday takes the following Tuesday and Wednesday of that week off to treat her arthritic pain but returns to work as scheduled on Thursday and Friday of that week. In this hypothetical, because our employee did not take the full week off, only Tuesday and Wednesday—and not the Monday holiday—are counted as FMLA leave.

In summary: When an employee takes the entire week off, count the holiday as FMLA leave. If the employee takes anything less than the entire week off, the employer cannot count the holiday as FMLA leave unless the employee was scheduled to work that day.

How Do Holiday Weeks Affect the Calculation of an Employee’s FMLA Leave Usage?

The DOL’s treatment of holiday weeks prompts an even more dizzying question for employers: Does this affect the calculation of an employee’s leave usage? In short, that answer is yes. For background, the DOL letter reminds employers that the employee’s normal workweek forms the basis of that employee’s FMLA leave entitlement (e.g., an employee who normally works 40 hours per week is entitled to 480 hours of FMLA leave—40 hours multiplied by 12 weeks). When dealing with weeklong increments of leave like we are for this topic, we often calculate leave usage based on the fractions of the workweek used. So again, for the employee who typically works 40 hours per week, taking off eight hours effectively uses up one-fifth of a week of FMLA leave.

Within that context, the fundamental question is whether the holiday is counted as a day in the normal workweek. Returning to hypothetical #1, if the employee who normally works a five-day week takes one day of FMLA leave during Labor Day week, have they used one-fifth of a week of FMLA leave? Or a quarter of a week? In other words, do we count the holiday as part of the week in that underlying calculation? According to the DOL, yes.

If the employee in our hypothetical above takes off one day of work during Labor Day week for FMLA leave, she has used one-fifth of a workweek of FMLA. Subtracting Labor Day (or any holiday) from this calculation can have serious unintended consequences. If an employer exempts the holiday from this calculation and uses only a four-day week instead, the employee in our scenario would have used a quarter of a week of FMLA leave instead of one-fifth of a week—which, of course, docks the employee’s leave entitlement for a larger fraction of the workweek. The DOL warns that calculating leave in this way would amount to an interference with FMLA rights.

The lesson in a nutshell: When calculating the amount of FMLA leave used in a workweek, always include the holiday as part of the workweek (but remember that the holiday itself is only counted as a day of FMLA leave if the employee takes off the entire workweek or is scheduled to work the holiday and uses FMLA leave that day). The DOL’s opinion letter may be tedious, but the guidance will be invaluable to employers that are hoping to avoid an FMLA violation this holiday season.

For additional information about this alert or other labor and employment issues, please contact any of the authors or any member of Steptoe & Johnson’s Labor & Employment Compliance Team.

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