The Department of Labor’s Wage and Hour Division (the “WHD”) recently issued an opinion letter on May 30, 2023. This opinion letter clarifies how to calculate the amount of leave used under the Family and Medical Leave Act (“FMLA”) when an employee takes FMLA leave for less than a full week during a week that includes a holiday.
Background
The FMLA entitles an eligible employee to take up to 12 workweeks of leave in a 12-month period for, among other qualifying reasons, a serious health condition that makes the employee unable to perform the functions of the employee’s position. Under the FMLA, an eligible employee with a serious health condition can take leave in a continuous block of time. An eligible employee can also take FMLA leave intermittently, which is in separate blocks of time, or on a reduced schedule leave, which reduces the time worked in the day or week. The calculation of an employee’s use of FMLA leave is specific to the employee’s work schedule.
The WHD explained that when a holiday falls during a week that an employee takes a full workweek of FMLA leave, the entire week is counted as FMLA leave. The specific example raised in the opinion letter is that “an employee who works Monday through Friday and takes leave for a week that includes the Fourth of July on Thursday would use one week of leave and not 4/5 of a week.” When the holiday falls during the week and an employee takes less than a full week, the FMLA regulations provide that the holiday is not counted unless the employee was scheduled and expected to work on the holiday.
The question that this letter addresses is “whether the employee taking FMLA 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).”
WHD’s Opinion
When FMLA leave was used as a fraction of a workweek, this fraction is determined based on the actual week in which the leave was taken. The WHD explained that such calculation is consistent with the FMLA’s requirement that the use of intermittent leave or reduced schedule leave cannot result in reducing the total amount of leave to which the employee is entitled beyond the amount of actual leave taken. 29 U.S.C. § 2612(b)(1). The WHD provided the following example to show how subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave impermissibly reduces the employee’s FMLA leave entitlement:
- For an employee who normally works a 5-day week schedule and takes one day of FMLA leave, excluding the holiday from that week would result in the employee using 1/4 of a workweek of FMLA leave in a workweek that includes a holiday instead of 1/5 of a workweek of FMLA leave.
- The WHD advised that subtracting the holiday from the workweek when calculating the amount of FMLA leave in a partial week of leave would be an interference with the employee’s FMLA rights.
Practical Takeaways
This WHD opinion letter serves as a reminder for employers on how to calculate FMLA leave during a week that includes a holiday. Additionally, this WHD opinion letter reminds employers that the calculation of an employee’s use of FMLA leave is specific to the employee’s work schedule.
If you have any questions on issues discussed in or related to this post, please contact:
- Kathryn Jones at (248) 457-7846 or kejones@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
