Question: We have a full-time employee who’s currently on paid leave under the Families First Coronavirus Response Act (FFCRA) because his young child’s school has been closed due to COVID-19. Our policy says that in order to receive holiday pay, you must work the day before and the day after the holiday. Do we owe him holiday pay for Memorial Day?
Answer: Unfortunately, the U.S. Department of Labor (DOL) hasn’t addressed this question in its FFCRA regulations or FFCRA FAQs (of which there are currently 93 questions and answers, but none on holiday pay). We believe the answer is different depending on whether the employee is using emergency paid sick leave (EPSL) (which is available for up to 80 hours) or emergency/expanded family and medical leave (EFMLA) (which is available for up to 12 workweeks, of which the first 2 workweeks are unpaid). For each type of leave, there are two issues to address: (1) entitlement to holiday pay; and (2) calculation of the amount of leave that has been used.
EPSL entitlement to holiday pay: It seems reasonable to follow the normal company policies on holiday pay. If the employee would receive holiday pay during paid leave, the EPSL should be treated the same as any other paid leave for purposes of determining whether the employee is entitled to holiday pay.
EPSL leave calculation: Because the EPSL leave is granted for a specific number of hours (capped at 80 hours), and because it’s in addition to any other rights under company policies, it would make sense to not count paid holidays toward the EPSL leave. So, if an employee normally works 8 hours a day, Monday through Friday, and would normally have Memorial Day off as a holiday, the employee would receive holiday pay on Memorial Day and 32 hours of EPSL (at 2/3 pay) for the remainder of the week.
EFMLA entitlement to holiday pay: For EFMLA, it seems reasonable to follow the normal federal Family and Medical Leave Act (FMLA) rules for holiday pay, since the EFMLA is described in the FFCRA as an expansion of the FMLA. The FMLA regulations say that entitlement to holiday pay depends on the employer’s normal policies for holiday pay during paid or unpaid leave, as appropriate. (See 29 CFR 825.209(h).) If the company normally allows holiday pay while an employee is on paid leave, then the employee would be entitled to holiday pay if the holiday occurs during the paid portion of EFMLA. If the holiday occurs during the unpaid portion of EFMLA, though, and the employee isn’t receiving any other type of paid leave such as EPSL, you can deny holiday pay if you would deny holiday pay during other types of unpaid leave. If the employee is entitled to holiday pay under your policy, he would receive normal holiday pay for the holiday and 2/3 pay (subject to the FFCRA caps) for the remaining workdays under the EFMLA.
EFMLA leave calculation: The FMLA regulations tell you how to calculate an employee’s leave entitlement when a holiday occurs during leave. (See 29 CFR 825.200(h).) If a holiday occurs during a week in which the employee is out on EFMLA during the entire week, the week would count as one week of EFMLA (i.e., the holiday wouldn’t extend the length of available EFMLA leave). According to the DOL’s FFCRA FAQs #20 & #22, employees may take EFMLA intermittently only if the company agrees. If you agree to allow intermittent EFMLA, then the holiday won’t count against the employee’s 12-week FMLA leave entitlement.