May an employer count the time when the business is closed due to inclement weather against an employee's allotment of Family and Medical Leave Act (FMLA) leave?

Author: Melissa Burdorf, XpertHR Legal Editor

It depends.

Closures of one or more full weeks. If an employer's business activities have temporarily ceased and employees are not expected to report for work for one or more full weeks (e.g., an employer closes its business because its roof collapsed under heavy snowfall), none of those days count against the amount of leave used by an employee out on FMLA leave at the time, even if the employee would not have been able to perform his or her job duties due to the closure. For example, if an employer's business closes for one full week during an employee's four weeks of FMLA leave, the employee only uses three weeks of FMLA leave.

Closures of less than one full week. If an employer's business is closed for less than one full week, the rule for calculating FMLA leave during a week in which a holiday falls would likely apply. Under that rule, if a holiday occurs during the week taken as FMLA leave it has no effect on an employee's FMLA leave allotment. Therefore, if a business is closed for a day or more, but less than a week, due to inclement weather during a week in which an employee is on FMLA leave for the entire week, then the whole week counts against the employee's FMLA leave allotment. For example, if an employee is taking FMLA leave for one week (e.g., Monday through Friday) and the business shuts down on Friday due to a blizzard, the employee is still considered to have used a week of FMLA leave. However, if an employee takes FMLA leave in increments of less than a week, only the days that the business is closed and the employee would have been expected to work (but took FMLA leave instead) can be counted against the employee's FMLA leave allotment. For instance, if an employee takes FMLA leave Monday through Wednesday, a Wednesday snow closure should be counted against the employee's FMLA allotment. If the snow closure was on Friday, however, it would have no effect on calculating FMLA leave.