We have an employee that is currently on California Family Rights Act (CFRA)/Family and Medical Leave Act (FMLA) leave and will be using leave during the week of the Fourth of July holiday. How do we count the holiday for leave tracking purposes?
Anyone familiar with administering an employee’s leave of absence under the federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA) knows the basic rules can make one’s head spin.
Of course, there is a significant amount of paperwork just getting an employee on CFRA/FMLA leave between the notices, designation forms, and wage replacement pamphlets.
Tracking the leave, however, can be its own battle for leave administrators due to the complexities around intermittent leave. So, how do holidays complicate matters further?
Tracking CFRA/FMLA Leave
Under the CFRA/FMLA leave rules, an eligible employee may take up to 12 weeks of leave in a designated 12-month period. The regulations highlight that “weeks” under these laws means the employee’s regular workweek. The leave does not have to be taken all at once and often is dictated by the qualifying reason for the leave.
Intermittent leave most commonly occurs for the employee’s own serious health condition or that of a qualifying family member. The leave duration is determined by the medical provider’s certification, which could certify whole weeks off or increments as small as an hour in a workday.
In the case of intermittent leave, employers will need to break down the employee’s 12 weeks into days and hours and track from there.
For example, if an employee who ordinarily works five days a week needs two days off, multiply the 12 weeks by the five days to get 60 total days that the employee may have off in the 12-month tracking period. Every day used for leave gets subtracted from the balance until the 12-month period resets or the employee exhausts the leave.
Holidays
An employer’s holiday policy can affect how we track leave depending upon the reason for the leave. Both the CFRA and FMLA regulations are consistent with how to track leave accounting for a holiday in that workweek.
Let’s assume that an employer closes the workplace for the Fourth of July holiday. In this case, if the employee is taking a full workweek off during the week in which the Fourth of July holiday falls, then the employee still will have a full workweek deducted from their leave balance.
If, instead, the employee is taking intermittent leave and works some days in the workweek and takes other days off for CFRA/FMLA leave in the same workweek, then only those days taken for CFRA/FMLA leave will count and the day off for the holiday will not count.
If the employer scheduled the employee to work on the holiday and the employee does not work the holiday for CFRA/FMLA reasons, then the employer may deduct that day from the employee’s leave bank.
Opinion Letter
The U.S. Department of Labor (DOL) reinforced this position in a recent opinion letter responding to a question whether we should consider the workweek in which a holiday falls to be a shortened workweek for intermittent tracking.
In this case, if an employee works two days during the week and uses two days of leave, the employer wanted clarification if it would be a half week of leave instead of two-fifths of a week because of the shortened week.
The DOL declined to follow the reasoning because the regulations clearly state employers should track intermittent leave based on the actual leave taken, not by any artificially shortened workweeks due to holidays.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
