How do you track FMLA when an employee takes leave during the week of Memorial Day?

If you’ve got an HR-compliance sweet tooth, here is your FMLA nerd candy.

Your favorite employment law, the Family and Medical Leave Act, entitles eligible employees of covered employers to take may take up to 12 workweeks of job-protected, unpaid leave in a 12-month period for various qualifying reasons. Employees can take those leaves in blocks or, in some instances, intermittently or on a reduced leave schedule by reducing the time worked in the day or week.

When a holiday falls during a week that an employee takes a full workweek of FMLA leave, the entire week is counted as FMLA leave. So, an employee who works Monday through Friday and takes leave this week when Memorial Day falls uses one week of leave and not 4/5 of a week.

But what about an employee taking FMLA during the week of Memorial Day on a reduced leave schedule?

Last week, the Department of Labor provided the answer in this memo.

Under the Family and Medical Leave Act, the employee’s normal workweek is the basis of the employee’s leave entitlement. If a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday. Therefore, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).

Now some of you dorks may be asking, “Well, Eric, how does this impact our ‘rolling backward’ calculation of leave used?”

I won’t leave you hanging.

Under the rolling backward method, each time an employee takes FMLA leave, the remaining leave is the balance of the 12 weeks not used during the immediately preceding 12 months. The memo notes that “where an employee takes one day of FMLA leave in a week with a holiday, leave would be used—and then 12 months later, replenished on a rolling basis—in increments of 1/5th of a workweek.” For more information about tracking an employee’s leave balance when taking intermittent FMLA leave during the “rolling” 12-month leave period, check out this earlier FMLA opinion letter.