Managing FMLA leaves that fall on holidays
Administering the FMLA is difficult. When an FMLA leave falls on a holiday, it becomes even more complicated. Employers must know how to answer three holiday-related questions. First, if a holiday falls during an employee’s FMLA leave, does that holiday count against the employee’s FMLA entitlement? Second, how is the FMLA administered when there is an extended plant, office or school shutdown? Lastly, must an employer provide holiday pay to an employee on FMLA leave?
Does a holiday count against an employee’s FMLA leave entitlement?
While many employers keep track of their employees’ FMLA entitlements in terms of days or even hours, the FMLA and its implementing regulations provide that employees receive 12 workweeks of leave in a one-year period. As a result, leave is calculated in workweek increments. Under 29 C.F.R. § 825.200(h), if an employee is off work for an entire workweek, even if it is a week in which a holiday falls, the employee uses a week of FMLA. Only when an employee is off work for less than an entire workweek will the employee have used a partial week of FMLA. For example:
- An employee is on FMLA leave for a week, from Tuesday, May 24, 2016, through Tuesday, June 7, 2016. His employer is closed on Monday, May 30, 2016, to celebrate Memorial Day. Does the May 30 holiday count against the employee’s FMLA entitlement?
The employee is off work the entire week of May 30, the week in which the Memorial Day holiday falls. As a result, the holiday does count against his FMLA entitlement, and the employee uses an entire week of FMLA for that week.
However, the outcome is different if the employee misses only part of a workweek in which a holiday occurs. For example:
- An employee is off work on FMLA leave for a week, from Wednesday, May 25, 2016, through Tuesday, May 31, 2016. His employer is closed Monday, May 30, 2016, for Memorial Day. Does the Memorial Day holiday count against the employee’s FMLA entitlement?
Because the employee is off work for only part of the workweek in which the Memorial Day holiday falls, then only the days the employee was expected to report to work, and not the Memorial Day holiday, count against the employee’s FMLA entitlement. But here’s an example with an important difference—the employer is open for business on the Memorial Day holiday:
- An employee is on FMLA leave from Wednesday, May 25, 2016, through Tuesday, June 7, 2016. His employer is open for business over the Memorial Day holiday. Does the holiday count against the employee’s FMLA entitlement?
Because the employer is open for business, and assuming that the employee would have been scheduled to work on the holiday, Memorial Day is treated as any other work day and May 30 would count against the employee’s FMLA entitlement.
To add to the complication, an employee who misses one day of work for an FMLA-covered reason during a holiday week does not use 1/5 of a week (assuming a typical five-day, 40-hour workweek) of FMLA leave. Rather, the employee uses a fraction of a workweek based, not on the hours he would have worked if it had been a typical week, but instead on the hours he would have worked but for the FMLA leave. If the employee is off work on Tuesday, May 31 and his employer is closed for Memorial Day on Monday, May 30, the employee would be charged with using 1/4 of a week of FMLA leave. Because the employee was absent for 8 of the 32 hours he would have been expected to work that week but for the FMLA leave, he uses 8/32 (or 1/4) of a week of FMLA.
If an employer cannot determine how many hours the employee would have worked in the holiday workweek because the employee’s schedule varies from week to week, the employer must determine the average number of hours the employee worked (including leave time used and overtime) over the prior 12-month period looking back from the date of the leave. The employee’s FMLA hours should be divided by this average number of hours typically worked to determine the portion of the workweek that should be counted against the employee’s FMLA entitlement.
How is the FMLA administered when there is an extended plant, office or school shutdown?
If there is a weeklong shutdown over the holidays, like a plant closing or school shutdown, and employees are not expected to work, 29 C.F.R. § 825.200(h) provides that the shutdown period does not count against the employee’s FMLA entitlement. A partial week shutdown is treated in the same manner as if the days off work were holidays.
Do employees on FMLA leave get holiday pay?
Under 29 C.F.R. § 825.209 and 29 C.F.R. § 825.215(c)(2), whether an employee on FMLA leave must receive holiday pay depends on whether the employer would make the payment if the employee were on a non-FMLA leave. If an employer’s policy provides that an employee who is off work the day before the holiday will get holiday pay only if the time off is paid (with PTO or vacation, for example), then the employer must provide holiday pay to an employee who is on FMLA leave only if the FMLA leave is paid. An employer with such a policy is not required to provide holiday pay to an employee on unpaid FMLA leave. In other words, employers must treat employees on FMLA leave consistent with those who are on similar forms of non-FMLA leave.
Holidays undoubtedly add some complexity to the administration of FMLA leaves, but employers that know the answers to these three questions are well-prepared to comply with the relevant provisions of the FMLA.