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    Employers are often confused about whether they may count a holiday against an employee's 12 week Family and Medical Leave Act (FMLA) entitlement. The U.S. Department of Labor has issued guidance on this subject. As explained in the DOL's FMLA Fact Sheet #28I, when a holiday falls during a week in which an employee is taking the full week of FMLA leave, 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, unless the employee was scheduled and expected to work on the holiday and used FMLA leave for that day.

    For example, an employer is closed for the Independence Day holiday and none of its employees work that day. An employee is taking 2 weeks of unpaid FMLA leave during the first 2 weeks of July. The employer would count Independence Day as FMLA leave for that employee. Another employee is taking FMLA leave on only 2 days of the week in which Independence Day falls. In that event, Independence Day would not be counted as FMLA leave for that employee.

    Remember that the FMLA applies only to certain larger employers. It only covers employers with 50 or more employees, but there are additional limitations. In order for an employee of a covered employer to be eligible for FMLA leave, the employee must:

    1. be employed by the employer for at least 12 non-consecutive months;
    2. have worked 1,250 hours during the 12-month period preceding the start of the requested leave; and
    3. work at a location where the employer employs 50 or more employees within a 75-mile radius.

    Feel free to contact us if you have questions about this matter. If you no longer wish to be included in our notifications about employment law developments, please send a message to

    John E. Falcone
    P.O. Box 1080
    Lynchburg, Virginia 24505
    (434) 846-2768