3 FMLA holiday tips to keep employers off the naughty list

The Family Medical Leave Act (FMLA) is a complicated statute for employers to understand and, therefore, to comply. With the holiday season very much upon us, we thought it would be the perfect opportunity to help guide you through complicated FMLA issues that tend to frustrate employers during the holidays. This post will tackle the following three questions for employers:

1. Do you have to pay an employee on FMLA holiday pay?
2. What do you do about FMLA when there is a workplace shutdown?
3. How do you count FMLA leave during the holidays?

Question 1: Do you have to pay an employee on FMLA holiday pay?

The first issue is whether an employer has to pay holiday pay to employees who are on FMLA leave during the holiday?

The FMLA regulations provide that an employer must maintain an employee’s benefits while on FMLA leave as follows:

An employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate). 29 C.F.R. § 825.09

The regulations also provide that an employer must maintain equivalent pay as follows:

Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary…. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment. 29 C.F.R. § 825.215(c)(2)

Taken together, the FMLA regulations require an employer to treat FMLA leave as it treats comparable non-FMLA leave. For example, suppose the employer has an employee who is taking vacation time during the holiday week and the employer’s 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 the employer treats that holiday pay depends 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’s policy would allow the employee to receive holiday pay if the employee is using vacation the day before the holiday, the employer would have to treat the employee on FMLA leave in the same manner. However, if the 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 employee on FMLA leave. Employers just have to be sure they are treating employees consistently with similar forms of non-FMLA leave under your policies.

Question 2: What do you do about FMLA when there is a workplace shutdown?

If there is a weeklong shutdown, such as a plant closing or school shutdown, where employees are not expected to work, the regulations are clear that the shutdown period cannot count against the employee’s FMLA allotment.

…if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. Methods for determining an employee’s 12-week leave entitlement are also described in § 825.205. See§ 825.802 for special calculation of leave rules applicable to airline flight crew employees. 29 C.F.R. § 825.200(h)

Question 3: How do you count FMLA leaving during the holidays?

Lastly, if an employee is out on FMLA leave during the holidays, how does the employer count the time against FMLA?

Let’s assume that from Monday, December 7, 2015, through Thursday, January 28, 2016, an employee is out on FMLA leave. Let’s also assume the employer’s facilities are closed Friday, December 25, 2015, to celebrate Christmas and Friday, January 1, 2016, to celebrate New Year’s Day. Do those holidays count against the employee’s FMLA leave entitlement?

The FMLA itself does not directly answer this question, so an employer has to look to the general rule for counting FMLA leave during a holiday week. The key is whether or not the employee is absent for the entire week in which the holiday is observed. So, in the example above, the answer is “yes, the days of the holiday count toward FMLA leave time.”

Under the FMLA, leave is calculated in workweek increments. While there are some exceptions when employers have to deal with shorter periods of intermittent or reduced schedule leaves, the week is the standard unit of FMLA measurement. If an employee is out on FMLA for the entire workweek, as in our example, the holiday would count against the employee’s FMLA leave entitlement.

If, however, the employee works part of the week in which the holiday falls, then only the days the employee would have been expected to report to work would count against the employee’s FMLA leave entitlement. In this case, the holiday days will not count against the employee’s FMLA leave entitlement unless the employee was otherwise scheduled to work as the FMLA provides:

For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for repairs), the days the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement. 29 C.F.R. § 825.200(h).

Takeaway

The takeaway here for employers is simple: check your leave policies and check them twice, and make sure you are applying FMLA leave entitlements in conformity with the FMLA and your own policies.

Happy Holidays