The FMLA and Holidays; Paid or Unpaid?

As we approach July 4th and Labor Day, employers are often asked about how Company approved holidays interact with FMLA leave.

DOES THE HOLIDAY COUNT AGAINST THE 12/26 WEEKS TOTAL?

An employee is entitled to up to 12 workweeks of FMLA leave for most qualifying reasons or up to 26 workweeks of FMLA for military caregiver leave.

When a holiday falls during a week in which an employee is taking the full week of FMLA leave, the entire week is counted as FMLA leave.

However, 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.

If the employee is entitled to holiday pay while substituting paid leave for unpaid leave, the fact the employee received pay for one or more days in the form of holiday pay would not extend the employee’s leave entitlement. For example, if the employee is paid holiday pay for one day, the employee does not then receive 12 weeks and one day of FMLA leave. See Wage and Hour Division, FMLA-21.

DOES THE EMPLOYEE ON FMLA LEAVE GET A PAID HOLIDAY?

FMLA leave is unpaid leave. However, an employee may request, or an employer may require, that the employee use accrued paid vacation leave, sick leave, personal time, etc. for some or all of the FMLA leave period.

If the employee is entitled to receive holiday pay while on paid leave (e.g., vacation leave), the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave. In accordance with the Company’s policy, the employee may not be entitled to holiday pay when the employee is taking unpaid FMLA leave.

FMLA leave must be treated like comparable non-FMLA leave.

Suppose an employee takes  vacation time during the holiday week and company policy provides that if an employee is on vacation the day before the holiday the employee will get paid for the holiday, but will not get paid for the holiday if the employee is on an unexcused absence the day before the holiday.

Now suppose an employee is absent for an FMLA-qualifying reason the day before the holiday. The way you treat that holiday pay may depend on whether the FMLA leave is going to be running concurrent with the employee’s paid vacation leave, or whether it is simply an unpaid leave under the FMLA.

If the employee is using vacation, and the employer policy would allow the employee to take holiday pay if they are using vacation the day before the holiday, the employer would have to allow the same for the employee on FMLA leave.

On the other hand, if an employer does not ordinarily pay an employee for the holiday if the employee is absent on some other kind of unpaid leave the day before the holiday, the employer would not have to pay the holiday for an employee on FMLA leave.

Employers just have to be sure they are treating the employee on FMLA leave consistently with similar forms of non-FMLA leave under the employer’s policies.

By Don Benson, Esq.