November 29, 2012
Calculating FMLA leave during the holidays
By Susan Schoenfeld, JD, Senior Legal Editor

The holidays are filled with cheer and oftentimes, many days of holiday leave. So what happens when FMLA leave and the holidays coincide? Does FMLA leave "count" during a work holiday?

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calendar highlighting holiday weekFMLA’s regulations (29 CFR 825.200(h)) state that, for purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within a full week taken as FMLA leave has no effect; the entire week is counted as a week of FMLA leave.

However, if an employee is using FMLA leave in increments of less than 1 week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.

Instead, in determining the amount of FMLA leave used by an employee, the employer would "count" only those hours that the employee would have worked, but for the FMLA leave.

If an employee’s schedule varies from week to week and an employer cannot determine with any certainty how many hours the employee would have worked, the employer should consider the average number of hours worked per week in 12 months prior to the leave to calculate what that employee would be entitled to (including overtime, time on a leave of absence, etc.).

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for 1 or more weeks (e.g., a plant closing for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

What about pay?

FMLA does not require that employees be paid while on FMLA leave. However, employees may be eligible to receive money or pay while they are on FMLA leave by substituting accrued paid vacation, sick, personal, or other paid leave time for unpaid FMLA leave time.

The 2009 final FMLA regulations changed and substantially simplified the rules for substitution of paid leave for unpaid FMLA leave. Under the final regulations, if an employee chooses to substitute accrued paid leave for FMLA leave, he or she may do so. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave pursuant to the employer’s established policies for use of paid leave.

In cases where FMLA leave and holidays coincide, an employer must carefully consider its own policies regarding holiday pay. So, when a holiday falls during FMLA leave, an employer should pay (or not pay) for the holiday in the same way it would for comparable non-FMLA leave.

For example, an employer’s policy allows that employees will be paid for a holiday if they take paid vacation the day prior to the holiday, but will not be paid if the day before the holiday is taken as an unpaid leave day. Under these circumstances, the employer must pay an employee on FMLA leave who is substituting accrued paid leave for FMLA leave on the day before the holiday, but the employer need not pay the employee for the holiday if the employee is on unpaid FMLA leave only.

Note that if you do pay someone on FMLA leave for the holiday, that day doesn’t lengthen their 12-week entitlement.

FMLA and the Holidays Resources

Susan Schoenfeld, JD, is a Senior Legal Editor for BLR’s human resources and employment law publications. Ms. Schoenfeld has practiced in the area of employment litigation and counseling, covering topics such as disability discrimination, wrongful discharge, and sexual harassment. She provided training and counseling to corporate clients and litigated cases before the U.S. Court of Appeals, state court, and at the U.S. Department of Labor. Prior to private practice, Ms. Schoenfeld was an attorney with the Civil Rights Division at the U.S. Department of Labor (DOL) in Washington, D.C., where she advised federal agencies, drafted regulations, conducted inspector training courses, and litigated cases for DOL. Ms. Schoenfeld received her undergraduate degree, cum laude, with honors, from Union College, and her law degree from the National Law Center at George Washington University.

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