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This one is to get the blood flowing for you hard-core FMLA nerds out there, cause it’s quickly going to get in the leave of absence weeds.

With the Labor Day holiday approaching, let’s discuss how an employer should calculate FMLA leave during a holiday week. Before you blurt out, I already know this stuff, Jeff, keep reading, as the Department of Labor recently weighed in on this issue, and I wanted to share what we learned.

Let’s consider two possible scenarios during the Labor Day week for our employee, Johnny:

In Scenario #1, Johnny is given Labor 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 Labor Day off as a work holiday, takes FMLA leave Tuesday, Wednesday, and Thursday for his bad back, but in a rare moment of overachievement, he reports to work on Friday.

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

Answer to Scenario #1

This one is generally straightforward. If Johnny observes the Labor 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.

Answer to Scenario #2

By showing up for work on Friday of the Labor Day workweek, Johnny complicates our FMLA calculation. Under the FMLA regulations, if Johnny works any portion of the workweek (e.g., he observes Labor Day holiday on Monday, takes FMLA leave Tuesday through Thursday and then reports to work on Friday), Johnny’s employer cannot count the holiday as FMLA leave. Here, the employer may only count Tuesday through Thursday 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 Labor Day workweek using a five-day workweek or a four-day workweek?

Can you see why this is significant? If the employer maintains the original five-day workweek and does not back out the holiday, then Johnny has used 3/5ths (or 60%) of a workweek of FMLA leave. However, if the employer backs out the holiday and considers it only a four-day workweek, then Johnny has used 3/4ths (or 75%) of a workweek of FMLA leave.

Insights for Employers

We posed this “calculation” issue to the DOL’s leadership, and although they declined to issue a formal opinion letter on the issue, they were kind enough to provide some guidance on this question.

First, 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.”

Second, we apply this normal workweek when calculating how much the FMLA leave the employee has used during the holiday week. In Johnny’s situation, for instance, DOL confirmed that the employee would be charged 3/5ths of a workweek because he missed Tuesday through Thursday of a five-day workweek.  In other words, when making the FMLA calculation, we do not back out the Labor Day holiday from our normal workweek.

Though this may only be a huge deal to those of us in the FMLA trenches, it still 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 Labor 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.

In Johnny’s case, according from the informal guidance we have from DOL, the employer should have exhausted 3/5ths (or 60%) of workweek instead of 3/4ths (or 75%).

Now, you know…

Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.

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