FMLA leave on a Paid Holiday
NYGiants
93 Posts
If an employee takes unpaid intermittent FMLA leave for three days, including a paid company holiday (e.g., good Friday), is she required to be paid for that day under the company paid holiday plan? What if the employer's policy is to NOT pay employees on vacation (or other leave) that falls on a company-paid holiday?
Comments
There are a lot of rules governing FMLA including Federal, State and employer policy. While some states require FMLA be paid leave, (California), in most states it is unpaid leave. As far as paying for a holiday falling during an unpaid FMLA, this would be dependent on the company policy.
http://www.dol.gov/esa/whd/fmla/
Above is the website to the Department of Labor for FMLA rules.
Cindy Holmes
Corporate Services Manager
SARMA
210-244-4539
cholmes@sarma.com
"The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated. " from http://www.dol.gov/elaws/esa/fmla/faq.asp
And here is a DOL Opinion Letter on the same topic: http://www.dol.gov/esa/whd/opinion/fmla/prior2002/FMLA-20.pdf
"This is in response to your inquiry and our telephone conversation regarding certain provisions of the Family and Medical Leave Act of 1993 (FMLA).
Name* currently has an employee on FMLA leave. During the leave the Thanksgiving, Christmas and New Year holidays will occur. The employee is substituting paid sick and vacation leave for the unpaid FMLA leave. It is the Name* policy not to grant holiday pay for any employee who takes a personal leave or educational leave. You ask if the employee is entitled to holiday pay for the three holidays while on FMLA leave.
During our telephone conversation you stated that the personal leave and educational leave you referenced in your letter are forms of unpaid leave. You were not sure what the Name* policy is regarding holiday pay during periods of paid leave such as vacation.
If the employee is entitled to receive holiday pay while on paid leave (e.g., vacation leave) the employee is entitled to holiday pay when the paid leave is being substituted for unpaid FMLA leave. In accordance with the Name* policy, the employee would not be entitled to holiday pay when the employee is taking unpaid FMLA leave. As we discussed, if the employee is entitled to holiday pay while substituting paid leave for unpaid leave, the fact the employee received pay for one or more days in the form of holiday pay would not extend the employee's leave entitlement. For example, if the employee is paid holiday pay for one day, the employee does not then receive 12 weeks and one day of FMLA leave. The entitlement is still 12 weeks."
So if this employee is being paid for those three days based on a sick/vacation PTO bank, and you allow other employees who are sick/on vacation to get the paid holiday, you would need to treat the FMLA individual the same. If the employee is not substituting paid time, then you would handle it the same as other unpaid leaves and holiday pay.
While some states require FMLA be paid leave, (California), in most states it is unpaid leave. [/quote]
Cindy, I believe that isn't quite accurate. Employers do not pay employees during FMLA in CA. CA does have a paid family leave law, but that is ONLY if the WORKER pays into the state disability fund.
[quote user="NYGiants"]If an employee takes unpaid intermittent FMLA leave for three days, including a paid company holiday (e.g., good Friday), is she required to be paid for that day under the company paid holiday plan? What if the employer's policy is to NOT pay employees on vacation (or other leave) that falls on a company-paid holiday?[/quote]
(dhall111 is correct: it's not FMLA, it's a state law in California and it covers just about everyone: participation is not generally optional)
I added emphasis to the part of your question that tells us that we can't answer it for you yet. We don't know what your company paid holiday plan rules are. However, the safest way to handle any FMLA concern is to rule in favor of the employee on the assumption that the FMLA absence never happened. Under this most conservative approach, you would pay the person if they would have been eligible for holiday pay had they not been on FMLA leave.
With respect to the hypothetical question, I suspect that's highly sensitive to circuit and you will want to check with counsel.
If your policy is to not pay any employee on vacation or other leave, then you would not need to pay them.
The way our policy reads is that if the employee is on paid leave (such as vacation) then we would pay their holiday pay. If the employee is on unpaid leave, then we don't.
The key here is to treat them as you would if they were not on FMLA. In this type of situation, it might help to think of how you would handle this situation if the employee were on vacation instead of on medical leave.
HRforME strikes again! Thanks for digging that up.
There are a lot of special rules that apply when a person is using any form of paid leave concurrent with their FMLA leave, some of which are in the regs, and some of which are not (but generally apply the conservative interpretation to determine the correct thing to do). For example, if a person is using vacation time concurrently with their FMLA leave, then you cannot ask them to certify or ask health related questions until the vacation time is used up unless you ask people who use vacation time to cover illness absence the same sorts of questions.
After reading the DOL opinion it seems like the key is to have a policy in place about this. Otherwise, you need to err on the side of the employee.
After reading the DOL opinion it seems like the key is to have a policy in place about this. Otherwise, you need to err on the side of the employee.
[/quote]There are a number of FMLA rights for the employer that they can only execute if they are included in the employer's own written policies and employees are notified.