The blog FMLA Insights recently commented on how to calculate FMLA leave during a week when a holiday occurs or when the employer is closed for a period time. Since we also get questions about this issue during the holiday season, we wanted to pass along some rules on this topic.
Even if a holiday occurs within a work week during which FMLA leave is taken, the week is still counted as one week of FMLA leave and counts towards the employee’s 12 week maximum eligibility. The fact that a holiday occurs within a week taken as FMLA leave has no effect. For example, Christmas falls on a Sunday this year but will be observed on Monday, December 26th. If an employee happens to be on FMLA leave during the entire week Christmas is observed, that full week should be counted as one full week of FMLA leave.
However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA leave entitlement unless the employee would otherwise be scheduled and expected to work on the holiday. For example, if an employee does not work Monday because of Christmas, but works Tuesday and Wednesday, and then takes FMLA leave on Thursday and Friday, the employer can only count the two days taken off in the work week as FMLA leave. The employer may not count the holiday.
OFFICE CLOSURES AND SCHOOL BREAKS
Many offices close between Christmas and New Year’s Day. In addition, many school districts, colleges and universities take extended winter and summer breaks. If an employer closes for a week or more and employees are not expected to report to work, then the days the employer’s activities have ceased operation do not count against the employee’s FMLA allotment.
SPECIAL RULES FOR SCHOOL EMPLOYEES
For employees who work in education, the holidays coincide with the end of the first school semester. FMLA has special rules that apply to “instructional employees” of public and private elementary and secondary schools who wish to take FMLA leave around this time. There rules are designed to limit disruption to the educational process. The FMLA defines “instructional employees” are those whose primary function is to teach and instruct students.
If an employee begins FMLA leave for their own serious health condition more than five weeks before the end of the semester, the school may require the employee to remain on leave until the end of the term if the leave lasts at least three weeks and the employee would otherwise return to work during the three week period before the end of the semester.
For an employee who takes FMLA leave for any qualifying reason other than the employee’s own serious health condition, the school may require the employee to remain on leave until the end of the semester if the employee begins leave less than five weeks before the end of the term. The leave period must also be longer than two weeks and the employee would otherwise return to work during the two week period before the end of the semester. However, if the employee begins FMLA leave less than three weeks before the end of the semester, then the school may require the employee to remain on leave until the end of the term if the leave lasts more than five work days.
Finally, if the school requires the employee to remain on leave until the end of the semester, only the period of leave until the employee is ready and able to return to work shall be charged against the employee’s FMLA leave entitlement. For example, assume today is exactly three weeks (or 15 work days) before the end of the semester and a teacher submits a request to take seven days of FMLA leave to care for an ill parent. Although the school has the discretion to require the employee to remain out on leave until the end of the semester, the school may only count seven days as FMLA leave.