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Guidance for Counting FMLA Leave on Snow Days
As we anticipate the end of a historic Michigan winter, a refresher on properly counting and allocating FMLA leave in connection with snow days is in order.
The FMLA allows 12 weeks of unpaid leave in a 12-month period (for most qualifying reasons) if an employee: (1) worked at least 12 months for a covered employer; (2) worked at least 1250 hours immediately before the date FMLA leave begins; and (3) worked at a location where the employer has at least 50 employees within 75 miles.
FMLA leave may be used for the following reasons:
- Parent’s care of a newborn child, if within 12 months following the birth;
- Placement of a child with the employee for adoption or foster care, if within 12 months after the date of placement;
- To care for a family member, including the employee’s spouse, child (under 18 or disabled), domestic partner, or parent of the employee who has a serious health condition;
- The employee’s own serious health condition that makes the employee unable to perform the essential functions of the job;
- To care for a family member of the Armed Forces, including a member of the National Guard or Reserves, if the employee is a spouse, son, daughter, parent, or next of kin of the member (on a rolling forward basis); and
- For up to 26 work weeks, for any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a war or similar combat operation.
Snow days have traditionally been treated as “holidays” under FMLA regulations and, as such, may affect ordinary FMLA leave calculations. The rule for leave calculation for a “holiday” (or “snow day”) falling within a FMLA leave request is as follows:
When a holiday falls during a week in which an employee is taking a full week of FMLA, the entire week is counted as FMLA leave; however, when a holiday falls during a week when an employee is taking less than the full week of FMLA leave, the holiday is not counted as FMLA leave.
See 29 CFR 825.200(h)
The following two examples illustrate the application of this rule:
Traditional Full Week FMLA Leave. Assume an employee is on a full week of FMLA leave when a district closes school for two consecutive snow days. Because FMLA leave is calculated on a work-week basis, and since the employee was on leave for the entire week, the two snow days will count against the employee’s 12-week allotment.
Intermittent or Partial Week FMLA Leave. Assume an employee is on intermittent leave (i.e., increments of less than one week) or was scheduled for less than a full week of FMLA leave. The district then closes school for a snow day on a day the employee was scheduled for FMLA leave, and similarly situated employees are not expected to report to work on the snow day. Only the amount of leave actually taken while on intermittent/reduced schedule leave may be charged; the snow day is not counted toward the FMLA allotment. To properly calculate this FMLA leave, the hours missed because of FMLA leave are divided by the number of hours that the employee would have otherwise worked, resulting in the employee using a fraction of the allotted FMLA leave.
FMLA leave is unpaid, but an employee may concurrently use paid leave (sick or personal business days) if the basis for the absence qualifies for that paid leave benefit. In this limited circumstance, employees on FMLA leave may receive pay, even on snow days. If, however, the FMLA leave is unpaid, the employee would likewise not receive pay on snow days unless a district policy, collective bargaining agreement, or employee handbook provides otherwise.
School officials should monitor employees on FMLA leave to determine whether snow days have been properly allocated during this school year. School board policy should be examined to identify how snow days are compensated.