Seriously? A FMLA Series, Episode 5

by Carla O’Sullivan

FMLA & the Holiday Season

A.K.A. Absence Management, Authored by Ebenezer Scrooge

 

There are two reactions to hearing the first holiday music of the season….your heart filling with warmth and joy or an ominous sense of dread and fear!! If it’s the latter, then you are likely an FMLA Administrator. Fear not, I’m here with tidings of comfort and joy!

If you are thinking “Why should the holidays make things more complicated?”, have a seat, we need to talk. There is one significant concept that is incredibly important to remember and that is the difference between ‘a week’ and a ‘scheduled work week’. A week is pretty simple, as it is any series of 7 calendar days. But a ‘scheduled work week’ is individually specific to each employee and varies at some stage during the year. When you toss in a holiday where the employee is not scheduled or required to come to work, then that employees ‘scheduled work week’ just changed. As a result of that change in the schedule, there is a change in how you track FMLA usage.

Let’s break it down….

The Basics:

  • FMLA time available is 12 work weeks. This does NOT simply equate to 480 hours per year. It is 12 work weeks, based on whichever work weeks the employee takes. The only way it is a perfect 480 is if the employee consistently is scheduled and works exactly 40 hours every week, with no fluctuations and that means no holidays.*
  • 825.200(h) For purposes of determining the amount of leave used…the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week.

The Ya, but…:

  • The point most employers miss here….is for the employee who is scheduled to work Monday through Wednesday during the week of Thanksgiving, with Thursday and Friday off, then the fraction of the work week changes. Monday, Tuesday, and Wednesday are each now worth 1/3 of the week. If they use all 3 days, they have taken three 1/3rd’s, which equals 1.0 whole week. But, if they only take 1 day, then they have used 1/3 of the week….not 1/5, not 8 hours subtracted from 480 hours.
  • “825.200(h) …if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA unless the employee was otherwise scheduled to work during the holiday.”
  • If you shut down all or even a portion of your organization for the whole week of Christmas through New Year’s Eve, and you have an employee who was on a continuous leave that encompassed that week, then you may not count it in the time you subtract.
  • “825.200(h)…if for some reason the employer’s business has temporarily ceased…for one or more weeks, the days the employer’s activities have ceased do not count against the employee’s FMLA leave.”

For those visual people – During a normal week, where five days are scheduled, if an employee takes off Monday for an FMLA qualified event, you subtract 1/5 (20%) of a work week. Therefore, if they take all 5 days, you subtract one full week. However, during the week of Thanksgiving, provided your organization is closed on Thursday and Friday, the days you are closed will be treated in the same manner as any standard Saturday/Sunday. If the same employee takes off Monday during this week, you will subtract 1/3 (33%) of a work week, rather than 1/5. They are only scheduled to work 3 days.

holidayfmla

Yes, seriously. In addition to worrying about whether you remembered to buy batteries and if you really needed that second piece of pumpkin pie, you need to pay close attention to the concept of ‘a fraction of a work week’. And while others are trying to convince their 10 year old that the lyrics are not “Bring us some friggin pudding”, you may be explaining to your employees that the Monday they took last week really is different than the Monday they took before Thanksgiving.

* Does not take into consideration 26 Military Caregiver Leave. The calculation of ‘work weeks’ is the same.