It’s that time of year — my kids are already making changes to the fourth draft of their Christmas wish list, holiday music has been playing on my local radio station for four weeks now, and I’m just about ready to claim the couch where I will spend most of Thanksgiving week in my PJs watching football and eating leftover turkey!
Another sign of the holiday season? An uptick in client calls asking me to confirm how they calculate FMLA leave during the holiday season.
I’m sure your employees never take FMLA leave during the holidays, right? But if in the unlikely chance they do [cough, cough], here is a quick compliance reminder about how you account for FMLA leave as we head into Thanksgiving, Christmas, winter break and the New Year:
Calculating FMLA Leave During A Holiday Week
Let’s use Thanksgiving Day as an example. If the employee gets Thanksgiving Day off as an employer holiday and then takes the entire rest of work week off for an FMLA reason, the employer should count the entire workweek as one full week of FMLA leave used. The same reasoning would apply if the holiday occurred on any other day of the workweek and the employee was otherwise absent for the remaining work days that week.
However, if the employee works any part of the workweek (e.g., he works Monday then is gone the rest of Thanksgiving week on FMLA leave), the employer cannot count the holiday as FMLA leave. Here, the employer can only count Tuesday, Wednesday and Friday. 29 C.F.R. § 825.200(h).
Calculating FMLA Leave During a Plant Shut Down or School Break
What if the employer shuts down operations for the entire week of Thanksgiving or at the end of the year or if a school/university closes down for winter break? Here, the regulations are clear:
If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g. , a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. [My emphasis]
In these situations, you cannot count the time against the employee’s FMLA allotment, even if it is obvious the employee would not have been able to perform the duties of the job during this break.