Welcome to the two people willing to dive into this blog post after reading that riveting headline!

In a highly technical opinion letter issued this week, the Department of Labor clarified how to calculate FMLA leave usage when an employee takes intermittent leave during a holiday week.

Bear with me here, but I find the best way to digest this opinion letter is to apply it to a real-life scenario. Let’s assume our employee, Johnny, took FMLA leave during the same week as Memorial Day. There are two possible scenarios:

In Scenario #1, Johnny is given Memorial Day off as a work holiday, but then he takes FMLA leave for the rest of the workweek (Tuesday through Friday) because of his chronic bad back.

In Scenario #2, Johnny is given Memorial Day off as a work holiday, takes FMLA leave Tuesday for his bad back, but he reports to work on Wednesday for the rest of the week.

Let’s assume Johnny works a standard eight-hour, five-day workday, Monday through Friday, and the employer’s workweek runs Sunday to Saturday.

This one is generally straightforward. If Johnny observes the Memorial Day holiday and then takes the entire work week off (i.e., he is absent Tuesday through Friday), the employer should count the entire workweek as one full week of FMLA leave used. The same would apply if the employer holiday occurred on any other day of the workweek and the employee was otherwise absent for the four other work days.

One week of FMLA used. Easy enough.

By showing up for work three days of the Memorial Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes the holiday on Monday, takes FMLA leave Tuesday and then reports to work on Wednesday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday as FMLA leave. 29 C.F.R. § 825.200(h).

Fair enough.

But now for the difficult question: Does the employer calculate FMLA use during the Memorial Day workweek using a five-day workweek or a four-day workweek?

Enter the DOL opinion letter.

As an initial matter, it’s critical to understand that the term “workweek,” as defined under the FMLA, is the employee’s normal schedule (hours/days per week) prior to the start of FMLA leave.  As the DOL notes in one of its older opinion letters, the normal schedule “is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition.”

With this backdrop in mind, the DOL confirmed in its latest FMLA love letter that the actual workweek includes the day of the holiday. The Department summed it up this way:

Subtracting the holiday from the workweek when calculating the amount of FMLA leave used in a partial week of leave would impermissibly reduce the employee’s leave entitlement, because the employee would have to use a larger amount of FMLA leave than needed. For example, for an employee who normally works a 5-day week and takes one day of FMLA leave, excluding the holiday from the week would result in the employee using 1/4 of a workweek of FMLA leave in a workweek that includes a holiday instead of 1/5 of a workweek of FMLA leave. Calculating the amount of leave used in this way would be an interference with the employee’s FMLA rights. 29 C.F.R. § 825.220(b).

In Johnny’s situation, for instance, the DOL’s opinion letter confirms that the employee should be charged 1/5th (20%) of a workweek because he missed Tuesday — one day — of a five-day workweek.  In other words, when making the FMLA calculation, we do not back out the Memorial Day holiday from the normal workweek.

Though this opinion letter might cause only my heart to stir, it is a pretty big deal, as an incorrect calculation improperly burns through an employee’s FMLA more quickly. Based on the feedback above, when an employer uses a four-day instead of a five-day workweek during the Memorial Day workweek, it miscalculates the percentage of FMLA leave used, and it does so to the employee’s disadvantage.  We are now at risk of an FMLA violation.

Jeff Nowak

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all…

Jeff Nowak is a shareholder at Littler Mendelson P.C., the world’s largest employment and labor law practice representing management.  Jeff represents employers in all areas of labor and employment law, but his passion is the FMLA — he eats, drinks and sleeps all things FMLA!