Counting FMLA Leave

The U.S. Department of Labor, Wage and Hour Division recently issued an opinion letter that addressed the question of how to account for an employee’s use of FMLA leave.  The opinion letter can be found here: https://www.dol.gov/sites/dolgov/files/WHD/opinion-letters/FMLA/FMLA2026-1.pdf. 

This opinion letter explored whether an employee could be charged with using an FMLA on a day that the school where the employee worked was closed due to inclement weather.  In addressing this question, the Wage and Hour Division based its answer on the type of leave that the employee was taking under the FMLA: intermittent FMLA or leave for an extended period of time. 

Noting that the FMLA specifically provides employees with the right to take leave both on an extended basis or intermittently or on a reduced schedule basis, the opinion letter then cited the fact that the law distinguishes between that leave and an extended absence leave when counting an employee’s FMLA usage.  The FMLA specifically states that “[e]mployees who use FMLA leave on an intermittent or reduced schedule basis may not have their leave reduced ‘beyond the amount of leave actually taken.’” 29 U.S.C. § 2612(b). The opinion letter further explained that “[w]hen an employee takes FMLA leave for less than one full workweek, the amount of FMLA leave used is determined as a proportion of the employee’s actual workweek.” See 29 C.F.R. § 825.205(b). Applying these rules to an employee who is using the 12 weeks of FMLA leave entitlement on an intermittent or reduced schedule basis means that the employee cannot be charged with an FMLA leave day for a holiday or other business closure that occurs on a day when they are scheduled to miss work. 

This counting of leave days, however, does not apply to an employee who is using FMLA leave on a full week basis.  Much like a salaried employee who must receive a full week’s pay in a workweek in which they perform work, an employee who is using FMLA in full week increments may be charged with a full week of FMLA leave even when the workweek contains a holiday or another day where the employee would not normally be required to work.  This rule applies only when the business is closed for less than one full week. 

The opinion letter distinguishes between closures of less than a week and full week closures. For those employees who are taking FMLA leave on a full week basis, an employer cannot count any leave that must be taken during the employee’s FMLA absence if the employer is closed for a full week during that time.  So, for example, if an employer works for a manufacturer and the business is closed for a full week for retooling, the employee who is on FMLA leave and is taking such leave for an extended, uninterrupted period, the employer cannot count the week in which the factory is closed against the employee’s FMLA leave.  The same would be true of a teacher who is on FMLA leave during the school year – when school is closed for a full week for Spring break, Winter break, etc. – those break weeks cannot be counted against an employee’s 12 weeks of FMLA leave. 

This opinion letter underscores the complexity of compliance with laws such as the Family and Medical Leave Act and requires employers to be aware of the specific details of each law.  myHRcounsel can assist you in managing these complicated labor and employment laws to ensure that you are proactively meeting your obligations under the law and avoiding potentially costly employee claims.