If an employee takes a full week of leave under the Family and Medical Leave Act during a week with a holiday, then the employee does not get additional pay for the holiday and must use a full week of FMLA leave, according to an opinion letter issued May 30 from Jessica Looman, principal deputy administrator at the Department of Labor.
“Employers should ensure that they properly calculate an employee’s FMLA leave during a week with a holiday,” attorney Emily E. Tichenor, an associate at Polsinelli, explained in an online post.
For instance, if an employee takes FMLA leave from July 3 to July 7 this year, which includes the July 4 holiday on Tuesday, then the full week will count as FMLA leave and will reduce the amount of FMLA leave the employee has available, accordingly.
On the other hand, Tichenor noted, “deducting a holiday from an employee’s available FMLA leave when an employee takes intermittent leave in a block of less than a week constitutes unlawful interference with an employee’s FMLA rights.”
So, for example, if an employee uses FMLA for Monday and Wednesday but works on Thursday and Friday, then the employee would be allowed holiday pay for July 4 on Tuesday.
“Therefore, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday),” Looman wrote.
As the McKnight’s Business Daily previously reported, employers also must ensure that employees who work remotely are paid properly under the Fair Labor Standards Act, and they must follow the FMLA not just for on-site workers but also for employees who telework or work away from an employer’s facility.
