December 2 Tip of the Week
“Holidays and the FMLA”
The Family and Medical Leave Act, which provides for up to 12 weeks of unpaid leave for eligible employees, often presents a number of issues for employers. The law lists the reasons why an employee may take FMLA leave and it gives employees the option of taking the leave in blocks of time or as part of intermittent leave. Employers must ensure that they provide employees with all of the notices that are required by law and must continue an employee’s benefits while out on FMLA protected leave. Finally, leave under the FMLA is “job-protected” meaning that an employee has the right to return to the same or an equivalent position at the end of their FMLA leave, unless their position was eliminated during the course of their leave for reasons unrelated to the employee’s taking of FMLA leave.
There are a number of calculations that an employer must perform when administering an employee’s FMLA leave. The first calculation has to do with the law’s application. FMLA applies to employers with 50 or more employees within a 75-mile radius. In a recent Tip of the Week, we reminded employers that, when determining the number of employees, they must include remote workers – those working from home or other offsite locations. When determining how to count remote workers for purposes of the law’s coverage, an employer must count a remote worker as being employed in the employer’s office or worksite location that supervises and directs the remote employee’s efforts. Employers cannot exclude a remote worker from the 50-employee requirement based on their remote work location – they must be counted as part of the work location that directs the remote employee’s work activities.
The second calculation has to do with whether the employee has met the eligibility requirement of having worked 1,250 hours within the 12 months preceding the employee’s request for FMLA leave. This means that employees who have not been employed by the employer for a period of 12 months are not eligible for FMLA leave. And, employees who have not worked the requisite 1,250 hours in the 12 months immediately preceding the leave are also not eligible for leave. To meet the 1,250-hour requirement, an employee must have averaged at least 24 hours of work in the 12-month period preceding the leave request.
The final calculation that can be troublesome for the employer is the ability to properly designate the amount of leave used. An employee is eligible to use up to 12 weeks of FMLA leave and, when an employee takes their leave in one large block of time off, it is relatively easy to determine when the employee has exhausted their leave. Intermittent leave use is more difficult to measure, however, and requires an employer to review the employee’s regular work schedule and to factor in any time off that is provided to employees for holiday. The U.S. Department of Labor recently issued an opinion letter that addresses this calculation. (The opinion letter can be found here: https://files.passle.net/Passle/672927a36d43cfd5866fe342/MediaLibrary/Images/2025-01-31-17-50-45-771-679d0d7501640ea80af520d8.pdf.)
When determining how to count the number of weeks of FMLA leave an employee has taken, the employer must consider how the employee is taking their leave. If an employee is taking leave in full week blocks of time, then the employer can count a full week of leave against an employee’s leave entitlement even if a holiday (such as Thanksgiving) falls during that week and the employee was not scheduled to work that day. It is only when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.
Like many labor and employment laws, the FMLA presents a number of compliance challenges for employers. myHRcounsel can assist you in navigating the ins and out of FMLA and other complicated employment laws – both state and federal.