The U.S. Department of Labor (DOL) has released Opinion Letter FMLA2023-2-A that affirms the DOL’s position that holidays for which an employee would not normally work, do not count as days for Family and Medical Leave Act (FMLA) leave calculation for entitlement purposes.
Question posed.
The DOL responded to an inquiry regarding how to calculate the amount of FMLA leave an employee is entitled where a workweek includes a holiday, specifically whether an employee that takes FMLA leave in a week with a holiday is using a fraction of an actual workweek (an actual workweek without a holiday) or a reduced workweek (an actual workweek with one day less due to a holiday).
DOL’s position.
FMLA regulations provide the method for calculating FMLA leave under 29 CFR 825.205(b)(1). The regulations explain what an actual workweek is based on how many days the employee would normally work in the actual workweek. The letter explains that “under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement.” Therefore, the DOL found that where the holiday is not normally worked by the employee, it would not be included in the actual workweek for FMLA leave calculation purposes. Instead, if the 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). Further, under 29 CFR 825.200(h), a holiday will not count “against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday” when the employee is taking reduced schedule leave.
For further information regarding FMLA leave periods, see Payroll Guide ¶20,264.
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