by Cindy Kolb
During the winter season, it’s not uncommon for businesses to close for a day or two due to inclement weather. But, after a snow day, when the snowmen have melted and the hot chocolate is all gone, employers might be left wondering how the time off affects their employees who are currently on leave under the Family Medical Leave Act (FMLA). While the FMLA doesn’t directly address the issue of when businesses are closed for inclement weather, it does address how to calculate leave under the FMLA when businesses close for holidays or planned breaks (such as a school closing for summer vacation). The FMLA states:
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. Similarly, if for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.
29 C.F.R. § 200(h).
So what does this mean? Well, the first thing to consider is whether or not the employee’s leave is for more or less than a week. For example, if the employee was on leave under the FMLA for an entire week, and the office was closed on Friday for a snow day, the employer should count the whole week towards the employee’s 12-week leave entitlement under the FMLA. However, if an employee works on Monday, takes FMLA leave for the rest of the week, and the office is closed on Friday for a snow day, that Friday will not be counted against the employee’s leave; in other words, the leave taken that week is 3 days, not 4 days.
The important things for employers to remember after inclement weather closes their business for a period of time is: 1) look at who was on leave under the FMLA during this time period; 2) look at whether the employee took leave in increments of less than a week; and, 3) if the leave time is less than a week, the inclement weather day will not count as part of the employee’s leave.
Editorial assistance provided by Katie Branscum.