Case Lesson: DOL Clarifies FMLA-Holiday Interplay

If a holiday occurs during an employee’s workweek, and an employee works for part of the week and uses Family and Medical Leave Act leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday.

Case: Opinion Letter, No. FMLA 2023-2-A (WHD 05/30/23).

What Happened: A member of the public requested an opinion from the U.S. Department of Labor's Wage and Hour Division about how to calculate the amount of leave used when an employee takes leave under the FMLA during a week with a holiday.

Specifically, the requester stated that when an employee takes a full week of a FMLA leave during a week that includes a holiday, that employee uses a full week of FMLA leave pursuant to 29 CFR 825.200(h). The requester wanted to know how to calculate the amount of FMLA leave used when an employee takes FMLA leave for less than a full week during a week that includes a holiday.

Rule of Law: Under FMLA regulations, 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.

What WHD Said: Looking back at a Notice of Proposed Rulemaking issued in 2008, WHD explained the math as follows:

(1) For an employee with a Monday through Friday work week schedule, in a week with a Friday holiday on which the employee would not normally be required to report, if the employee needs FMLA leave only for Wednesday through Friday, the employee would use only 2/5 of a week of FMLA leave because the employee is not required to report for work on the holiday.

(2) If the same employee needed FMLA leave for Monday through Friday of that week, the employee would use a full week of FMLA leave despite not being required to report to work on the Friday holiday.

Why is it that a request for a partial week of FMLA leave receives different treatment from a request for a full week?

"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," WHD reasoned. "For example, for an employee who normally works a 5-day week and takes one day of FMLA leave, excluding the holiday from the 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."

Workers' Comp 101: In Murillo v. City of Granbury, 2022 WL 14198744 (N.D. Texas 10/24/22, a city employee took FMLA leave via the Families First Coronavirus Response Act due to the unavailability of childcare caused by the COVID-19 pandemic. While the employee was on leave, three citywide holidays occurred, so did those holidays extend her 12-week FMLA leave by three days? No. "Neither the FMLA nor the Families First Coronavirus Response Act mention anything about holidays being exempt from the FMLA leave calculation," the court wrote. "To the contrary, the Department of Labor issued [29 CFR 825.200(h)] stating that '[f]or purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.'"

WHD also addressed how its calculations work if an employer uses the "rolling backward" calculation, under which each time an employee takes FMLA leave, the remaining leave is the balance of the 12 weeks not used during the preceding 12 months.

"The principles described in this letter apply when the rolling backward method is utilized," WHD wrote. "To use the above example, in a scenario where an employee takes one day of FMLA leave in a week with a holiday, leave would be used -- and then 12 months later, replenished on a rolling basis -- in increments of 1/5th of a workweek."

Takeaway: If an employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).

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