Ahead of the Fourth of July and Labor Day, the U.S. Department of Labor (DOL) issued an opinion letter containing guidance on the Family and Medical Leave Act (FMLA) detailing how to calculate FMLA leave during a week with a holiday. Briefly, the DOL’s guidance makes a distinction between employees taking constant, uninterrupted FMLA leave and those taking intermittent leave. In February 2023, the DOL issued wage and hour guidance for teleworkers that included determining FMLA eligibility.

Brief Overview of the FMLA

The FMLA covers private sector employers with 50 or more employees, as well as public agencies. Public agencies include state, local, and federal employers and public schools. Under the FMLA, employees may take unpaid, job-protected leave for specific family and medical reasons. This includes taking leave under the FMLA for mental health care. Qualified individuals may even request FMLA leave as a reasonable accommodation. The law specifies how to calculate FMLA leave under most circumstances. Specifically, covered employees may receive:

  • Twelve workweeks of leave in a 12-month period for qualifying reasons.
  • Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness. The eligible employee must be the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

To qualify for FMLA leave, an employee of a covered employer must have been employed for at least 12 months. They must have also worked at least 1,250 hours during the 12-month period right before their FMLA leave.

How to Calculate FMLA Leave During a Week with a Holiday

According to the DOL’s opinion letter, the law treats FMLA leave during weeks on which a holiday lands differently depending on how an employee chooses to take their FMLA leave. The guidance provides the following information on how to calculate FMLA leave during a week with a holiday according to the kind of FMLA leave taken:

  • Full week of FMLA leave during a week with a holiday – The holiday does not affect the employee’s FMLA leave. Therefore, the employee will use a full week of FMLA leave, reducing their amount of available FMLA leave accordingly. This applies whether or not the employer gives employees paid time off for the holiday.
  • Intermittent FMLA leave during a week with a holiday – If the employee was not expected or scheduled to work on the holiday, the holiday does not count toward reducing the employee’s available FMLA leave. For example, if an employee takes FMLA leave on Monday, July 3, and Wednesday, July 5; Tuesday, July 4, is a company holiday; and the employee works the rest of the week, the employee will only use two days of FMLA leave. However, if the employee would normally have been expected or scheduled to work on Tuesday, July 4, if the employee did not take FMLA leave, and the employee uses FMLA leave to have July 4 off, the holiday counts as FMLA leave and reduces the employee’s amount of available FMLA leave accordingly.

In the end, the employer may not deduct a company-offered work holiday from an employee’s available FMLA leave when the employee takes intermittent leave in a block of less than a week.