On May 30, 2023, the Wage and Hour Division of the United States Department of Labor (“USDOL”) issued an opinion letter offering clarification as to whether holidays that occur during a period of leave covered by the Family Medical Leave Act (“FMLA”) count against the employee’s FMLA entitlement and determination of the amount of leave taken.
The USDOL was responding to a request for an opinion clarifying 29 C.F.R. § 825.205(b). That regulation states, where an employee uses “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.” See 73 Fed. Reg. 7876, 68087 (Feb. 11, 2008). The USDOL confirmed, as the regulation states, that if an employee is taking less than a full workweek of FMLA leave and a holiday falls within that workweek, the holiday should not be counted against the employee’s FMLA entitlement unless the employee was scheduled to work on that holiday.
As was sufficiently clear prior to the USDOL’s opinion letter, the rule can be easily distilled. As to a partial workweek, if the employee is scheduled to work the holiday but calls out for an FMLA reason, the employer can count the hours the employee would have worked as FMLA (including that holiday). If the employee is not scheduled to work the holiday, the employer cannot count those hours as leave under the FMLA.