Do Holidays Count Against FMLA Leave? Wage and Hour Division Clarifies Whether Holidays Count Against an Employee’s FMLA Leave Entitlement and Determination of the Amount of Leave Taken

Legal Alert

June 1, 2023

WHD FMLA holidays

The United States Department of Labor’s Wage and Hour Division (WHD) recently published opinion letter FMLA2023-2-A clarifying how to calculate the amount of leave used when an employee takes Family and Medical Leave Act (FMLA) leave for less than a full week during a week that includes a holiday. Specifically, WHD issued FMLA2023-2-A in response to a request for an opinion concerning whether an employee who takes leave during a week that includes a holiday is (a) using a fraction of the employee’s usual workweek (as if the workweek did not contain a holiday), or (b) using a fraction of the reduced workweek (the employee’s usual workweek less the holiday day).[1]

Defining an employee's usual workweek

According to the WHD, under the FMLA, the employee’s usual workweek is the appropriate basis for determining the employee’s FMLA leave entitlement. The amount of the employee’s FMLA leave entitlement is not affected by a holiday that falls during their workweek if the employee works for part of that week and takes FMLA leave for part of that week, unless they were scheduled to work on that holiday. Therefore, if the employee was not expected or scheduled to work on the holiday, the amount of FMLA leave taken (which would not include the holiday) divided by the complete workweek (which would include the holiday) would represent the portion of the workweek of FMLA leave used.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

[1] The applicable FMLA regulations regarding this question can be found at 29 C.F.R. § 825.200(h) and 29 C.F.R. § 825.205(b)(1). 29 C.F.R. § 825.200(h) explains that where an employee takes FMLA leave in increments of less than one week during a week that includes a holiday, the holiday generally does not count against the employee’s FMLA leave entitlement. 29 C.F.R. § 825.205(b)(1) states that where an employee takes FMLA leave on an intermittent or reduced schedule, the employee’s “actual workweek is the basis of leave entitlement.”