FMLA leave duration - holidays included in total time off count?

Bucky333

I have an employee who is taking intermittent leave through FMLA for bonding with a new child.  The schedule of days off includes one that falls on a holiday (7/4/08).  Would this date be included in the total leave time allowed or is it excluded due to it being a regular holiday?  The full-time, 40 hr per week employee has 5 weeks of time left to take for bonding and this equates to 25 days.    The supervisor is fine with the employee taking the fridays off, but would the holiday be included in the count or not?

Thanks for your help, FMLA, vs paid PFL, vs PDL in California can be complicated!

TXHRGuy

FMLA provides for job protected leave fom work.  That is, it allows a qualified employee with a qualified situation to not show up for work and receive no penalty other than loss of pay for having done so.  Since the employee would not normally be working on that day, you cannot count it as a day of leave under FMLA.  Under California state law, I'm not sure.  I only had to mess with paid family leave a little bit one time in 2005.

hr410

DOL just issued proposed/new regulations on this topic . . . going forward, under the federal FMLA, days off that include a holiday would be included in FMLA time off if the leave is taken in a block of a week or more (and not counted if the holiday falls during a block of FMLA leave taken for less than a week.

TXHRGuy

[quote user="hr410"]DOL just issued proposed [...] going forward,[...][/quote]

Going forward, once the regs are adopted and published in CFR.  It's been a long, slow process.  Our friends at DOL chose the least cumbersome administrative issues and helped a little, leaving the biggest problems just that: big problems.

sbulkeley

Hi -

 I actually was wondering the same thing with an employee here and looked on the HR California website and this is what it said:   

Family Leave and Holidays

If a holiday is less than one week long, such as Thanksgiving, and falls within the period of time an employee is out on family leave, the holiday is counted as part of the family leave. For example, if you normally give employees Christmas Day off as a paid holiday, and an employee is out on family leave during the week Christmas falls, the employee does not get Christmas Day as a holiday. Instead Christmas Day is counted as any other day and part of the employee’s family leave.

Hope that helps and you're absolutely right - FMLA vs PFL vs PDL vs CFRA is very complicated!

Stephanie

 

 

TXHRGuy

29CFR 825.200

    (f) For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if for some reason the employer's business activity has temporarily ceased and
employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement. Methods for determining an employee's 12-week leave entitlement are also described in Sec. 825.205.

Note the bit about closures of 1 week or more.

 

This was argued in Mellen v. TRS of Boston University (case #07-1151 1st Circuit 2007), where plaintiff's attorney argued that Mellen did not receive full benefit of FMLA leave time because days on which Mellen would not have worked anyway were still counted against the 60 days.  The Appelate court granted summary judgement in favor of defendant, effectively sealing the regulation as acceptable in its current state (unless/until another circuit disagrees).

I stand corrected.  This was addressed in the DOL's review of comments published last February and I was thinking it was part of the upcoming revised regulations.  However, in fact, it's part of the old rules and it has been upheld in the 1st circuit.  I'm not aware of any other challenges.