Are you up to speed on how to calculate Family and Medical Leave Act (FMLA) entitlement during the holiday season? FMLA usage and holiday pay are determined based on several factors, including:
- U.S. Department of Labor (DOL) FMLA regulations and provisions;
- your employer’s policies;
- whether your company is open for business on holidays; and
- whether your company closes or shuts down for a period during the winter holidays.
Ahead of the holidays, it’s a good idea to review all of the above to ensure you’re calculating usage correctly and paying your employees properly. We’ve analyzed and provided examples of some of the more common scenarios below.
Leave Usage Calculation
The U.S. Department of Labor (DOL) offers specific guidance with regard to calculating FMLA leave that includes a holiday.
Continuous Leave: If an employee is on a continuous FMLA leave, and a holiday occurs during a week in which an employee is on FMLA leave, the holiday has no effect. The week is counted as a week of FMLA leave. That includes a holiday or other days the employee’s business is closed (such as the Friday after Thanksgiving). This applies to most traditional office and business establishments that close for major holidays. 29 C.F.R. § 825.200(h)
Intermittent Leave: If an employee is on an approved intermittent leave and is using FMLA leave in increments of less than one 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 (for example, some employers, such as retail stores and airports, are open for business on holidays). 29 C.F.R. § 825.200(h)
Similarly, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (for example, a school closing for summer vacation or for the Christmas/New Year holiday 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. 29 C.F.R. § 825.200(h)
For example, Elvish Toy Factory shuts down from December 26 through January 2 every year. This is a company paid shutdown and applies to all employees. Sally, a labor foreperson in charge of wooden toys and trains, is taking continuous leave from December 20 through January 9 to care for her husband who has a serious health condition. Because Elvish Toy Factory is closed December 26 through January 2, leave taken on those days does not count against Sally’s FMLA entitlement.
Paid or Unpaid Leave?
Although the DOL’s guidance on how to calculate FMLA entitlement usage is pretty clear, whether the employee is to be paid for a holiday that occurs during his or her leave of absence requires additional analysis. The DOL indicates that an employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave. 29 C.F.R. § 825.209(h)
This is why it’s important to know your employer’s current holiday pay policy. For example, Father Time’s wife delivered their newborn at the stroke of midnight on New Year’s Eve. Thirty days prior to his New Year’s baby’s birth, he had requested bonding time to begin on January 1. Normally, New Year’s Day is a paid holiday for Father Time and the other employees employed at ConfettiWorks, but will Father Time still be paid for the holiday even if he is on continuous leave?
ConfettiWorks’ company policy states that employees are entitled to holiday pay if they work or take paid vacation the day after the holiday. Father Time is not planning on using paid vacation during his leave because he will not have accrued enough vacation time to cover his time off. Therefore, in keeping with the ConfettiWorks’ policy, Father Time will not receive holiday pay for New Year’s Day.
Employer policies must be applied consistently across employees, but that doesn’t mean that every employee will or will not receive pay for a particular holiday. As you can see from the examples above, FMLA usage during the holiday season must be examined on a case-by-case basis, taking into account whether the leave is intermittent versus continuous, whether the business is open, FMLA regulations, employer policies, and employee circumstances (such as whether the employee will be using paid vacation time during a leave).