June 22, 2023

Volume XIII, Number 173

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DOL Opinion Letter Clarifies How Employers Are Supposed to Calculate Family and Medical Leave Act When It’s Taken During a Week That Includes a Holiday

The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave. FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • For the birth and care of the newborn child of an employee;

  • For placement with the employee of a child for adoption or foster care;

  • To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or

  • To take medical leave when the employee cannot work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer for at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.

A May 30, 2023, opinion letter from the U.S. Department of Labor (DOL) clarifies how employers should calculate leave under FMLA when it’s taken during a week that includes a holiday. The holiday does not count against an employee’s FMLA entitlement if the employee works part of that week. So, for example, if an employer gives its employees Thursday and Friday off for Thanksgiving, and the employee worked on Monday but took FMLA beginning on Wednesday of that week, then the Thanksgiving holiday that week would not count towards the leave. If, on the other hand, the employee went out on FMLA on November 17th, then they would not be given credit for the Thanksgiving holiday because they did not work the week of the holiday.

Calculating FMLA and applying it correctly can be extremely tricky. There are significant legal ramifications if it is miscalculated. Hence, it is extremely important for employers to understand and apply all of the rules carefully. 

COPYRIGHT © 2023, STARK & STARKNational Law Review, Volume XIII, Number 173
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About this Author

Scott Unger, Litigation Attorney, Stark Law Firm
Shareholder

Scott I. Unger is a Shareholder and member of Stark & Stark’s Litigation Group, where he concentrates his practice on litigation arising out of business and commercial disputes. Mr. Unger regularly counsels business owners on the prosecution and defense of minority oppression litigation (corporate divorces), breach of contract cases, uniform commercial code (U.C.C.) litigation, consumer fraud claims, appellate practice, employment, and estate litigation. He has extensive experience litigating cases in a variety of jurisdictions, including, New Jersey, New York, Pennsylvania, Ohio,...

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