Can an employer count holidays against an employee's FMLA leave?

Whether an employer may count a holiday against an employee's Family and Medical Leave Act (FMLA) entitlement depends on how an employee is taking FMLA leave. As explained in U.S. Department of Labor'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 considers Thanksgiving a holiday and is closed on that day, and none of its employees work. One of its employees is taking 12 weeks of unpaid FMLA leave the last 12 weeks of the calendar year. The employer would count Thanksgiving Day as FMLA leave for that employee. If another employee is taking FMLA leave on a reduced workweek schedule and works Wednesday, Thursday and Friday each week, then Thanksgiving Day would not be counted as FMLA leave for that employee. 

The DOL reiterated its guidance on the calculation of FMLA leave during a week with a holiday in a May 2023 opinion letter.