Question

I have an employee who is out on intermittent leave, taking approximately five days off each month for his serious health condition. He is currently covered under both the state PFML (Paid Family and Medical Leave) and the federal FMLA (Family and Medical Leave Act). I get confused about how holidays count toward his leave allotment. For example, he was off Thanksgiving week due to his illness. Is that five days of leave or only three?

Answer

That will depend on his work schedule and the expected duration of his absences at the time his leave was approved. Thanksgiving and the following day will count toward his FMLA and PFML leave if he is scheduled to work those days.

For an employee who is taking intermittent FMLA leave in increments of less than a full week, only the days that he has taken off will count toward his FMLA leave. But, for an employee who is scheduled to take an entire week (or multiple weeks) of FMLA leave, the two days will count toward the FMLA allotment as that leave is measured in workweeks. Earlier this year, the federal Department of Labor issued an opinion letter in response to a question about holidays and the calculation of FMLA leave. It does not discuss a situation in which an employee is approved for leave in increments of a few days at a time, and with the addition of a holiday (or two) it ends up being an entire week. But the DOL opinion quotes the FMLA statute (29 USC Chapter 28), indicating that the taking of intermittent leave “shall not result in a reduction in the total amount of leave to which the employee is entitled . . . beyond the amount of leave actually taken.”

The state PFML law and regulations do not address your issue, but the Department of Family and Medical Leave has indicated that it will look to the federal FMLA to answer questions when applicable. It is likely that if the three-day absence is consistent with the approval of his PFML application, he will receive wage replacement for the three days and not the entire week.

You should review the FMLA and PFML documentation to determine whether the three days of leave are consistent with the approval of the two leaves. If so, then the two days taken for the Thanksgiving holiday will not count toward his FMLA and PFML leave allotments. If the approval was for a shorter duration of absence, under the PFML it is not considered retaliation to request additional information from the employee, i.e., medical documentation supporting the need for the days off. Likewise, the FMLA allows you to seek additional documentation when an absence is inconsistent with the approved leave.

AIM members with questions about leaves or other human-resource matters may call the AIM HR Helpline at 800-470-6277.