Employees who take Family and Medical Leave Act leave in partial or intermittent increments during a week may not have holidays that fall during the same week counted against their FMLA leave, U.S. Department of Labor Principal Deputy Administrator Jessica Looman wrote in an opinion letter May 30.
On the other hand, if an employee uses a full workweek of FMLA leave during a week that includes a holiday, that holiday counts against their FMLA leave allotment, she said.
This method of counting holidays is not a change from past provisions, Looman clarified, saying the department has used the same approach since the first publication of its FMLA regulations in 1995.
She noted DOL also addressed the issue in 2008, when it issued a notice of proposed rulemaking to clarify how to count holidays and provided an example:
“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. However, 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.”
The proposal was later adopted but in other language.
DOL takes this approach, Looman wrote, because subtracting a holiday as FMLA leave during a partial week would “impermissibly reduce the employee’s leave entitlement, because the employee would have to use a larger amount of FMLA leave than needed.” However, when an employee uses a full workweek, “the entire week is counted as FMLA leave.”
Navigating intermittent FMLA policy — when employees take separate blocks of time for a single qualifying reason — has been a consistent headache for employers due mainly to questions about counting time.