Does FMLA Take a Holiday? New DOL Opinion Letter

by Lana L. Rupprecht, Esq. - AVP Product Compliance

June 05, 2023


On May 30, 2023, right after the Memorial Day holiday, the Department of Labor (DOL), issued Opinion Letter FMLA2023-2-A.

What question does the Opinion Letter address?

The Opinion Letter discusses the calculation of leave taken under the Family and Medical Leave Act (FMLA) during a holiday week.  Specifically, it answers:  How should FMLA usage be calculated when an employee takes leave during a holiday week?

What is the answer to the question?

Well, that depends….

  • FMLA entitlement is measured in workweeks. If the employee needs to take full week of FMLA leave that happens to contain a holiday, the hours the employee does not work on the holiday are included in that week.
    • In other words, the holiday has no effect and the employee is charged with a full week of FMLA usage.


  • But, if the employee works for part of the week containing the holiday and also uses FMLA leave for part of the week, the holiday will NOT count against the employee’s FMLA leave entitlement unless the employee was required to report for work on that holiday.
    • What does that mean?The DOL provides the following example:
      • If an employee with a normal five-day work week had Memorial Day off, their workweek is five days-not four days. If the employee took Tuesday as an FMLA day, then worked Wednesday, Thursday, and Friday, the employee would be charged with only 1/5 (not 1/4) of a week of FMLA usage.

What regulations apply?

The DOL analyzed the following two FMLA regulations. 

  • 29 C.F.R. 825.205(b) provides, that when an employee takes intermittent or reduced scheduled FMLA leave, the employee’s actual workweek is the basis of their leave entitlement.

    “Therefore, if an employee who would otherwise work 40 hours a week takes off eight hours, the employee would use one-fifth (1/5) of a week of FMLA leave. Similarly, if a full-time employee who would otherwise work eight-hour days, works four-hour days under a reduced leave schedule, the employee would use one-half (1/2) week of FMLA leave…

  • But also, 29 C.F.R. 825.200(h) provides that when an employee takes a full workweek of FMLA during a week that includes a holiday, the employee uses a full week of FMLA leave.

    “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.”

The DOL states in its Opinion Letter that it does not believe there is a conflict between these two provisions.  It noted that 825.205(b)(1) explains that when FMLA leave is used as a fraction of a workweek, the fraction is based on the actual week leave was taken. Further, 825.200(h) explains that if a holiday falls during a full week of continuous leave, the holiday has no effect and the full week of FMLA leave is used.  

How does this impact employers who use the “rolling backward” FMLA calculation method?

This question was also addressed in the Opinion Letter.  The “rolling backward” calculation is one of four ways an employer may use to calculate the amount of FMLA time available to an employee.  Under this method, each time an employee takes FMLA leave, the remaining leave available is the balance of 12 weeks not used over the past 12 months. 

Therefore, if an employee takes one day of FMLA leave in a week with a holiday (1/5 of a normal 5-day workweek), one day of leave would be used and then 12 months later, replenished on a rolling basis in increments of 1/5 of a workweek. 

Reliance Matrix Can Help!

Reliance Matrix offers FMLA and state leave administration services.  We take these difficult FMLA calculations – as well as other FMLA administrative challenges – off the employer’s hands.  For more information, contact your Reliance Matrix account manager or send us a message to [email protected].

Reliance Matrix is a branding name. Reliance Standard Life Insurance Company (Home Office Schaumburg, IL) is licensed in all states (except New York), the District of Columbia, Puerto Rico, the U.S. Virgin Islands and Guam. First Reliance Standard Life Insurance Company (Home Office New York, NY) is licensed in New York and Delaware. Standard Security Life Insurance Company of New York (Home Office New York, NY) is licensed in all states. Absence services are provided by Matrix Absence Management, Inc. (Home Office Phoenix, AZ).

Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].