DOL Provides Additional Clarification on Impact of Holidays on an Employee’s FMLA Leave Balance

On Tuesday, the DOL issued an Opinion Letter explaining how an employer should calculate the amount of leave for an employee who takes leave under the Family Medical Leave Act (“FMLA”) during a week that includes a holiday. The letter also provides guidance on how employers can properly convert the twelve weeks of FMLA leave provided to eligible employees to an hourly equivalent.

Three Possible Outcomes When Determining How a Holiday Impacts an Employee’s FMLA Leave Balance
The Opinion Letter addressed the tricky scenario of calculating FMLA leave during a week that includes a holiday, explaining that the impact of a holiday on the employee’s FMLA leave balance is addressed in 29 CFR § 825.200(h). To demonstrate how to apply the regulation, the DOL posed a hypothetical involving an employee who works regularly Monday through Friday and uses FMLA leave to take off during a week that included the Fourth of July (which fell on a Thursday under the hypothetical.)

Three possible outcomes exist under § 825.200(h) depending on whether that employee took off the entire week; took off less than a full week; or was scheduled and expected to work on the Fourth of July:

• Outcome 1: If the employee used FMLA leave to take off for the entire week (Monday through Friday in the hypothetical), the entire week (including the Fourth of July) counts against the employee’s twelve-week FMLA leave allotment.
  
  
• Outcome 2: If the employee used FMLA leave to take off less than the entire week, but including the Fourth of July (e.g., Wednesday through Friday), the Fourth of July does not count against the employee’s FMLA leave allotment if the employee was not scheduled or expected to work on the Fourth of July.
  
  
• Outcome 3: If the employee used FMLA leave to take off less than the entire week, but including the Fourth of July (e.g., Wednesday through Friday), the Fourth of July does count against the employee’s FMLA leave allotment if the employee was scheduled and expected to work on the Fourth of July.
  
  

Proper Calculation of Available FMLA Leave Hours
In addressing the impact of a holiday on FMLA leave, the DOL also explained (for a second time this year) how employers can properly convert FMLA leave entitlement to an hourly equivalent of twelve weeks.[1]  

Employers often convert the twelve weeks of FMLA leave to 480 hours (12 weeks x 40 hours) to help manage intermittent and reduced schedule leave. But 480 hours is not always correct: the conversion must be based on the employee’s normally scheduled hours. 29 C.F.R. 825. 205(b)(1). Thus, an employee regularly scheduled to work more than forty hours per week is entitled to more than 480 hours of FMLA leave. For example, an employee regularly scheduled to work fifty hours per week is entitled to 600 hours of FMLA leave (12 weeks x 50 hours).

Steps to Take Now

• Confirm that your organization is correctly determining when a holiday should count (or not count) against an FMLA employee’s twelve-week leave balance.
• Confirm that your organization is properly calculating an employee’s available hours of FMLA leave (if your organization uses an hourly equivalent).

 
[1] The DOL also addressed this issue in its February 9, 2023 Opinion Letter in response to an inquiry concerning whether an employee may indefinitely limit their workday to eight hours when the normal working day exceeds eight hours.