“What did I do wrong?” and “Am I doing this correctly” are frequent questions from clients regarding FMLA administration. This is the 24th blog in this series, which digs into the FMLA regulations to address discrete mis-steps that can result in legal liability.

Not properly understanding how holidays and holiday pay play into FMLA leave.

With the Fourth of July holiday this week, this blog post is a reminder for employers of how company holidays play into the scheme of FMLA leave.

Under the FMLA regulations, determining the amount of leave used by an employee is treated differently based on whether the employee is on continuous or intermittent FMLA leave:

Continuous FMLA leave.  If an employee is on continuous FMLA leave, the fact that a company holiday may occur within the week taken as FMLA leave has no effect.  The entire week of leave is counted as FMLA leave.

Intermittent FMLA leave.  If an employee in on intermittent FMLA leave and using increments of less than one week, the holiday will not count against the employee’s FMLA leave, unless the employee was scheduled and expected to work the holiday and takes the day off as FMLA leave.

Do I have to pay holiday pay?

Regarding whether an employee is entitled to holiday pay for FMLA leave requires a separate analysis.  The FMLA regulations state that an “employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g. holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).”  (29 CFR §825.209.)  This means that an employer must analyze how it treats holiday pay and non-FMLA leaves.

For example, if an employee takes a full week of vacation time to travel with family, does the employee receive holiday pay for the holiday?  If yes, then an employee who takes a full week of vacation time concurrently with FMLA leave during the same week also must be paid for the holiday.  This way, the holiday pay practice is consistent with how the employer pays out holiday pay for any employee taking vacation during the same week, whether for FMLA or non-FMLA.

Similarly, if an employee takes a full week off for non-FMLA personal reasons on an unpaid basis, perhaps under a Personal Leave or similar policy, and is not paid for the holiday, then an employee who takes a full week off for FMLA reasons on an unpaid basis is also not paid for the holiday.

In a nutshell…

Navigating through the regulations reveals the basic rules regarding holiday pay.

  • Continuous leave of one week or more?  The entire week is counted as FMLA, despite the holiday.
  • Intermittent leave of less than one week?  The holiday is not counted as FMLA unless the employee is scheduled to work on the holiday and calls off for FMLA.
  • Treatment of holiday pay?  Holiday pay must be consistent with other forms of non-FMLA leave, whether paid or unpaid.