Nothing dampens an employer’s holiday spirit faster or more completely than a lawsuit. I can’t promise that you won’t get sued before the end of the year, but I can offer a quick piece of advice that may take one issue off the table.
If you have employees using their Family & Medical Leave Act (“FMLA”) leave during a week in which a holiday falls, whether the holiday counts against their leave allotment depends upon whether the employee takes off the whole week or just part of the week. The regulations provide:
For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if an employee is using FMLA leave in increments of less than one week, the holiday will not count against the employee’s FMLA entitlement unless the employee was otherwise scheduled and expected to work during the holiday.
29 C.F.R. Sec. 825.200(h).
So, if the employee is off the whole week, a full week is counted against the employee’s 12-week FMLA allotment. If the employee is taking incremental leave, and works at any time during the holiday week, only the time the employee is away from work counts against his FMLA time (including the holiday if it would have otherwise been a workday for the employee).
The holidays are stressful enough even when you don’t run afoul of a major federal employment law. We’re here to make sure something other than your FMLA practices land you on the naughty list.