Avoiding FMLA leave liabilities: What new DOL opinion letter makes clear

If employees’ Family and Medical Leave Act (FMLA) entitlements are impermissibly reduced, your company may face legal consequences.

But when someone takes intermittent or reduced-schedule FMLA leave, it’s tricky for staffers to accurately calculate how much of the 12 weeks of leave has been used, especially during a week when there’s a company holiday.

Recently, the Dept. of Labor (DOL) released an opinion letter that provides guidance. We’ll recap what DOL said in Opinion Letter FMLA 2023-2-A, so you can share the update with key individuals.

Calculating FMLA leave

Of course, when an employee takes a full workweek of FMLA leave during a week with a holiday, you’d count the entire workweek as FMLA leave.

However, if that person takes less than a full workweek of FMLA leave, you wouldn’t count the holiday as FMLA leave. Note: There’s an exception if someone was scheduled and expected to work on a holiday and instead took leave.

The opinion letter zoomed in on intermittent leave and reduced-schedule leave. The question was whether, in a week with a holiday, an employer’s calculations should include the employee’s:

• usual workweek – i.e., a workweek without a holiday, or
• reduced workweek – i.e., the usual workweek minus one day.

Let’s say an employee normally works a five-day workweek – Monday through Friday – and that person takes one day of intermittent leave (on Tuesday) during a week with a holiday (on Wednesday).

According to the DOL guidance, the employee would’ve used one-fifth of a workweek of FMLA leave. That’s one day of leave out of five days (i.e., the usual workweek).

Otherwise, if an employer’s calculation was one day of leave out of four days (i.e., the reduced workweek), the employee would’ve used one-fourth of a workweek of FMLA leave. That’d be a larger amount of FMLA leave than the employee needed, meaning the employee’s leave entitlements would be impermissibly reduced.

Of course, in addition to intermittent leave, the same principle would apply to reduced-schedule leave.

Action step: Check whether your payroll and HR systems are calculating FMLA leave usage correctly.