Holiday Weeks Could Be a Potential FMLA Landmine According To DOL

November ushers in a season of holidays, celebrations, and shortened workweeks throughout fall and winter. However, employers who deal with the year-round hardship of 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. The Department of Labor (DOL) has 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 solution to this question is not necessarily intuitive, so here’s what employers need to know about FMLA usage during a holiday week:

1. When is an employee’s absence during a holiday week counted as an FMLA absence?

The answer is pretty simple: When the employee takes the full workweek of FMLA leave, the holiday is also counted as the employee’s FMLA leave.

Hypothetical #1: An employee who works Monday through Friday takes the entire week of Thanksgiving off for arthritic pain. In this scenario, the entire week is counted as FMLA leave.

By contrast, when 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 #2: An employee works Monday, Tuesday, and Wednesday of Thanksgiving week. She is not scheduled to work on Thanksgiving, but she is scheduled to work on Black Friday. On Thursday, the employee experiences a bout of arthritic pain, and she subsequently calls off for her shift on Friday. In this hypothetical, because the employee did not take the full week off and was not scheduled to work on Thanksgiving, only Friday — and not the Thanksgiving holiday — will be counted as FMLA leave.

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

2. 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 is the basis of their FMLA leave entitlement (for example, an employee who normally works 40 hours per week is entitled to 480 hours of FMLA leave annually: 40 hours multiplied by 12 weeks); for more information about correctly calculating and deducting intermittent leave, see our previous alert.

When dealing with weeklong increments of leave, 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 1/5 of a week of FMLA leave.

With that context, the fundamental question is whether the holiday is counted as a day in the normal workweek. Returning to hypothetical #1 above, if the employee who normally works a five-day week takes one day of FMLA leave during Thanksgiving week, have they taken 1/5 of a week of FMLA leave? Or 1/4 of a week (or even 1/3 — given the widely accepted treatment of Friday as a holiday)? In other words, do we count holidays as part of the week in the underlying calculation? According to the DOL, yes.

If the employee in our hypothetical above takes off one day of work during Thanksgiving week for FMLA leave, she has used 1/5 of a workweek of FMLA. Subtracting Thanksgiving (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 or three-day week instead, the employee in our scenario would have used 1/4 or 1/3 of a week of FMLA leave instead of 1/5 — 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: The holiday itself is only counted as a day of FMLA leave if the employee takes off for 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.

Please reach out to the author with any questions or assistance needed on this matter.