Is it too early to start thinking of Christmas break? We know many administrators in September were thinking “wake me up when September ends.” (Bonus points for all readers who sang the Green Day song there.) With the school year in full swing, according to our calculations, the next major holiday break is a mere 36 days away. For those in our office who love football (everyone) and enjoy a mighty helping of Thanksgiving delights (The turkey! The stuffing! The pie!), we already have the holidays on our minds. With holiday breaks comes the telephone calls and emails asking for clarification on calculating FMLA leave. Fortunately for all you FMLA nerds, the DOL blessed us with a recent opinion letter in May 2023 regarding this very topic.
Under the FMLA, when a holiday falls during a week in which the employee is taking a full week of FMLA leave, the entire week is counted towards the individual’s FMLA leave usage. For example, if you have a staff member who has a baby on November 16 and requests FMLA leave for the birth of the child, the whole week of November 20 through the 24th counts as FMLA leave. The school should count one full week instead of 2/5 of a week. It is irrelevant that the district does not have school November 22, 23, and 24.
What about a staff member who requests intermittent FMLA leave? The DOL confirmed its previous stance stating:
Under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. If a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday. Therefore, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).
To illustrate, let’s assume a school has a custodian who needs to undergo scheduled cancer treatments. The custodian utilizes intermittent FMLA leave to do so. The custodian works November 20 and 21 and plans to utilize intermittent FMLA leave on November 22 and 24. This employee normally works a five day week and is required to work November 22 and 24 normally. Because he takes two days of FMLA leave and Thanksgiving is part of the week, the school would count the employee as using 2/5 of a workweek as FMLA leave.
In the opinion letter, the DOL reiterates its policy stance on the treatment of intermittent leave by explaining:
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.
More guidance on the calculation of FMLA leave usage is available from the DOL here. Additionally, we drafted a whole series on the FMLA which is available starting with this post. If you have any questions about calculating leave under the FMLA or the use of intermittent leave, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or send us all an email at ksb@ksbschoollaw.com.