DOL clarifies FMLA intermittent leave calculation during holidays | Vigilant

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Jun 1, 2023

DOL clarifies FMLA intermittent leave calculation during holidays

On May 30, 2023, the U.S. Department of Labor (DOL)’s Wage and Hour Division published an opinion letter clarifying how holidays affect the calculation of intermittent leave under the federal Family and Medical Leave Act (FMLA) (Opinion Letter FMLA2023-2-A). The FMLA regulations at 29 CFR 825.200(h) already explain that: (1) if a holiday occurs during a full week of FMLA leave, the entire week counts as a week of FMLA leave and (2) if the holiday occurs during a week in which the employee takes intermittent FMLA leave, the holiday doesn’t count as FMLA leave (unless the employee would have been scheduled to work on the holiday).

The opinion letter gives an example of how to properly calculate intermittent FMLA leave during a workweek that includes a holiday. Suppose an employee who normally works Monday through Friday needs FMLA leave for the last three days in a particular workweek, and Friday happens to be a holiday in that workweek. The amount of FMLA leave used in that week is two-fifths of a week, i.e., two days of FMLA leave (Wednesday and Thursday) out of five regularly scheduled days. As long as the employee wouldn’t have been scheduled to work on the holiday, the holiday is ignored for purposes of the intermittent leave calculation.

Tips: As this example illustrates, it’s clearest to calculate intermittent FMLA usage with fractions of a workweek rather than number of hours. The FMLA regulations at 29 CFR 825.205(b) authorize employers to convert the 12 workweeks of FMLA leave to an hourly equivalent, but only if the conversion accurately reflects that employee’s normal work schedule. For example, an employee who normally works 40 hours per week would be entitled to a total of 480 hours of FMLA leave (40 hours per week times 12 workweeks), while the figure would be 540 hours for an employee who works 45 hours per week and 600 hours for an employee who works 50 hours per week. If an employee’s hours vary so much that it isn’t possible to predict their schedule during a week in which they need intermittent leave, the regulations say to establish the baseline for the week by reviewing the 12-month period before leave begins and calculating a weekly average using scheduled hours (hours worked plus any time off). Need help calculating FMLA entitlement? Your Vigilant Law Group employment attorney can explain how to apply these rules. Also see our Legal Guide, FMLA: Calculation of a Workweek for Intermittent Leave.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.
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About The Author

Karen Davis

Senior Employment Attorney Vigilant Law Group
  • Colorado College, B.A. in Chemistry
  • Lewis & Clark College, Northwestern Law School, J.D.
  • Attorney licensed in Oregon and California
  • Former competitive swimmer and current birder

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