Author: Melissa Burdorf, XpertHR Legal Editor

Employers should be aware that several issues may come into play regarding time off for holidays and the Family and Medical Leave Act (FMLA).

First, many employees will abuse FMLA leave around this time of year in order to extend personal time off. Not only will this affect an employer's productivity but it also can impact co-workers' morale. Employers should look for signs of FMLA abuse, actively investigate it and monitor an employee's pattern of absences. If an employer honestly believes that the employee has engaged in FMLA abuse, it can (albeit carefully) take action.

Next, while for many the holiday season is joyous, for some the holiday season can be quite depressing. Such depression may lead to employees taking time off - for some employees this time off may fall under their paid time off benefits (PTO), for others it may constitute a reasonable accommodation under the Americans with Disabilities Act (ADA) and for others still, it may trigger the need for leave under the FMLA. An employer may require employees requesting FMLA leave to present appropriate medical certification supporting the need for leave. Employers should carefully follow the certification process in order to help combat the fraud issue mentioned above.

Employers must also keep in mind that the FMLA has specific rules surrounding whether or not a holiday is counted against an employee's leave entitlement - and they can be tricky. For example:

  • Holidays that occur within a full workweek taken as FMLA leave have no bearing on the calculation of the amount of leave used by an employee during that week; the week should be counted as a full workweek of leave.
  • If an employee takes FMLA leave in increments of less than one week (i.e., intermittent leave), a holiday falling within a particular week cannot be counted against the employee's FMLA leave entitlement, unless the employee was otherwise scheduled and expected to work during the holiday - this makes intermittent leave joyful to handle.
  • If an employer temporarily closes down its operations for one or more full workweeks, such as during the end-of-the-year holidays, those days do not count against employees' FMLA leave entitlement (even if it is clear that the employee would not have been able to perform his or her job during the break).

Lastly, while employers are not required by law to provide holiday pay to employees on FMLA leave, employers must stay consistent with their policy for providing pay when an employee is on any other type of comparable leave.

Additional Resources

Employee Leaves > FMLA

How to Handle a Request for FMLA Leave

How to Prevent Leave Discrimination

Tactics to Control Intermittent Leave Abuse - Checklist

Steps to Prevent FMLA Fraud and Abuse - Checklist

Family and Medical Leave Policy

Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act) Employer Created Form - WH-380-E