FAQs about holidays and FMLA leave

Eligibility, pay, pattern of absence

Posted December 29, 2016

Between Christmas and the New Year, many employees take time off. Holidays can introduce unique issues in regard to the Family and Medical Leave Act (FMLA). Here’s a rundown of the more popular questions regarding the issues.

Do we need to count holidays toward FMLA eligibility?

No. For purposes of determining whether an employee has worked at least 1,250 hours in the 12 months before leave is to begin, you need not count any time that is not actually worked. Therefore, even if an employee was paid on a holiday, if he or she did not work, you need not count that time toward the 1,250 hours.

May we count holidays as FMLA leave?

Much will depend upon some specifics, such as whether the leave is being taken in full weeks, or increments of full weeks. If the leave is being taken in full weeks, the fact that a holiday may occur within the week has no effect – the week is counted as a week of FMLA leave. If, however, the employee is taking FMLA leave in increments of less than one week (intermittent or reduced schedule), you may not count the holiday as FMLA leave unless the employee was otherwise scheduled and expected to work during the holiday. FMLA leave on the day(s) before and after holidays (pattern of absence)?

Similarly, if, for some reason your business activity has temporarily ceased and employees are generally not expected to report to work for one or more weeks, the days your organization’s activities have ceased are not counted as FMLA leave. This could be the case, for example, if your organization shuts down during the week between Christmas and New Year’s.

Are employees on FMLA leave entitled to holiday pay?

An employee’s entitlement to holiday pay (or other benefits outside of group health benefits), during FMLA leave is to be determined by your established policy for providing such benefit when the employee is on other forms of leave – paid or unpaid, as appropriate.

Many employers require employees to be at work the day before and after a holiday to receive holiday pay. There may be some exceptions, however, such as when an employee is on paid vacation on either of those days. In such a situation, if an employee is substituting vacation pay for unpaid FMLA leave for either of those days, he would be entitled to receive the holiday pay.

If your policy indicates that employees on unpaid leave the day before and/or after a holiday are not eligible to receive holiday pay, and an employee is on unpaid FMLA leave for either or both of those days, the employee may not be eligible to receive the holiday pay.

How do we handle employees who appear to extend their holiday by taking FMLA leave on the day(s) before and after holidays (pattern of absence)?

Start by reviewing the certification to see when you are to expect the employee to be absent. If the employee is taking significantly more leave than the certification indicates, you may request a recertification. As part of the information you may obtain on a recertification, you may include for the health care provider, a record of the employee’s absence pattern and ask if the serious health condition and need for leave is consistent with such a pattern.

If an employee’s absence pattern alone is suspect, you may simply focus on it in a recertification request, again, based on what the current certification indicates.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.


FMLA EssentialsJ. J. Keller's FMLA Essentials manual helps HR pros understand and comply with the requirements, control costs related to leave taken and minimize the law's potential disruption to their organizations' operations.

 

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