The Department of Labor Clarifies How Holidays Impact FMLA Leave

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Patricia Tsipras

May 30, 2023

Today, the United States Department of Labor’s Wage and Hour Division issued Opinion Letter FMLA2023-2-A to clarify whether holidays count against (1) an employee’s Family and Medical Leave Act (FMLA) leave entitlement and (2) determination of the amount of leave taken.

Generally, the FMLA allows eligible employees to take 12 workweeks of unpaid job-protected leave in a 12-month period for qualifying family and medical reasons.  Leave may be taken on a continuous or intermittent basis.

The employee’s normal workweek is the basis of the employee’s leave entitlement.  If a holiday falls during a week in which an employee is taking a full workweek of FMLA leave, the entire week is counted as FMLA leave.  However, if a holiday occurs during a week in which an employee uses FMLA leave only for part of the week, the holiday does not reduce the employee’s FMLA leave entitlement unless the employee was required to report to work on the holiday.  The amount of FMLA leave taken would be the fraction of the workweek used for leave divided by the total workweek.

The Department of Labor used the following example to explain its position:

• An employee’s normal workweek is Monday through Friday.
• Friday is a holiday and the employee is not required to report to work.
• If the employee needs FMLA leave from Wednesday through Friday, the employee would use only 2/5 of a week as FMLA leave because the employee is not required to report to work on Friday.
• If the employee needs FMLA leave from Monday through Friday, the employee would use a full week of FMLA leave.

When questioned in the past about the alleged inconsistency in treatment of holidays, the Department of Labor explained,

Holidays regularly occur during normal workweeks and should be counted when they fall within weekly blocks of leave.  On the other hand, the Department believes that where leave is taken in less than a full workweek, the employee’s FMLA leave entitlement should only be diminished by the amount of leave actually taken.

Subtracting the holiday from the workweek when calculating partial week leave would impermissibly reduce the employee’s leave entitlement.  For example, if an employee normally works a five-day workweek, then excluding the holiday from the week would result in the employee using 1/4 of the workweek as FMLA leave, rather than 1/5 of the workweek.

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