Summertime brings warm weather, planned vacations, and a number of state and federally recognized holidays. While long holiday weekends are often a time for celebration, cookouts, and a break from the typical 9-to-5, they also play an important role in calculating Family and Medical Leave Act (FMLA) leave. Recently, the U.S. Department of Labor (DOL) issued an opinion letter clarifying how an employee’s FMLA leave entitlement should be assessed when the workweek includes a scheduled holiday.
FMLA Leave and the Workweek
Under the FMLA, eligible employees may take up to 12 workweeks of leave in a calendar year for various qualifying reasons, including childbirth, a serious health condition, or to care for an ill family member. Employees’ FMLA leave is calculated based on their workweek, so employees who work 38 hours per week are entitled to 12 38-hour weeks off.
When employees need less than a full week off, the time is counted as a fraction of the workweek. For instance, if employees need three days off to recover from a serious illness, they would only be counted as using 3/5 of a workweek of leave.
When employees take a full workweek of FMLA leave during a week that includes a holiday, they use one full week of FMLA leave. But what happens if they only need three days off work and the workweek is shortened for a long holiday weekend, with no one scheduled to work on Friday? Would the leave total still be 3/5 of a workweek, or would it be 3/4 of a workweek?
Holiday Opinion
The DOL’s May 23, 2023, opinion letter clarifies that a holiday doesn’t count against employees’ FMLA entitlement. It’s very important not to miscalculate employees’ FMLA leave use because it reduces the number of hours they’re entitled to under the Act and could lead to FMLA interference claims.
Therefore, HR professionals should be aware of their company’s recognized holidays and pay attention when one falls near an employee’s intermittent or partial leave. Even if the week is short because of a holiday, ensure employees aren’t being shorted their FMLA leave.
No State Equivalent in West Virginia
Notably, employers and HR professionals in West Virginia must also confirm they’re covered under the FMLA. The federal law applies only to employers with locations with 50 or more employees within a 75-mile radius. West Virginia doesn’t have a state equivalent to the FMLA and doesn’t require employers to provide employees with family and medical leave unless covered by the FMLA.
Similarly, West Virginia doesn’t require employers to provide paid holidays. If you choose to give fringe benefits, such as certain paid holidays off, however, you need to have written policies outlining the benefits and ensure the policies are implemented in a fair and consistent manner.
Takeaway
So, for employers covered by the FMLA that choose to give employees certain holidays off, ensure your recordkeeping and FMLA leave calculations are correct and provide for the 12-workweek entitlement under law.
Ashley Faulkner is an attorney with Steptoe & Johnson PLLC in Morgantown, West Virginia. You can reach her at ashley.faulkner@steptoe-johnson.com.