You are currently taking time under the Family and Medical Leave Act (FMLA) and a holiday falls on the week that you are taking leave. Is it legal for your employer to count the holiday towards your bank of FMLA days? The answer to this question will depend on when you are taking leave and whether you are scheduled to work on the holiday in question.
The FMLA guarantees employees unpaid, job-protected leave for 12 work weeks in a 12 month period. However, employees do not have to take the leave continuously. For example, an employee could work shorter days or switch between a week off and a week on. How an employee chooses to take the time will determine if the holiday should be counted towards FMLA leave.
What Is Considered A Holiday Under FMLA
A holiday is what the employer has designated as a paid holiday for its employees. This does not always include all the state recognized or federally recognized holidays. Most employee handbooks will list paid holidays. If you are unsure, speak with your manager.
A Holiday Falls On A Week You Do Not Work
If a holiday falls on a week that you did not work, the holiday will be counted toward your FMLA leave. For example, Jennifer takes FMLA leave the week after Memorial Day because she broke her arm. The whole week, including Memorial Day, will be counted towards her FMLA leave.
A Holiday Falls On A Week That You Partially Worked
If a holiday falls on a week that you worked shorter hours, the holiday will not be counted toward your FMLA Leave. For example, Jennifer works on Tuesday and Wednesday, but takes FMLA leave on Thursday and Friday during the week of Memorial Day. Memorial Day will not be counted toward her FMLA leave assuming she was not required to work on Memorial Day and usually works a 40 hour week.
You Do Not Have A “Standard” Work Week
Some employees do not work the typical 9-5 Monday-Friday job. If this is you, your employer should calculate your FMLA leave according to your work schedule, not the standard. For example, if your normal work week is Tuesday-Sunday, then your employer should use those days when determining whether the leave should be counted towards FMLA.
If your employer is not abiding by FMLA law, you have a right to file a complaint and a civil lawsuit. It is best to speak with an employment attorney to go over your options. Your employer may be liable for lost back pay, lost front pay, liquidated damages and attorney fees.
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