Tips for Employees Taking Leave During the Holidays and Into the New Year

The Society for Human Resources Management (SHRM) recently shared a great article reminding employers how to properly administer Family and Medical Leave Act (FMLA) leaves taken during the holidays. In short, the article reminds us:

  • When a holiday falls during a week in which an employee is taking a full week of FMLA leave, the entire week is counted as FMLA leave.
  • For employees taking FMLA leave intermittently or in increments less than one week, the holiday is not counted as FMLA leave, unless the holiday is a day in which the employee was scheduled and expected to work.
  • Company or department shutdowns of one or more weeks where employees are not expected to report to work do not count against an employee’s FMLA leave entitlement.

The US Department of Labor Fact sheet #28I speaks about the calculation of FMLA leave in general, including and expanding upon the scenarios above.

Of course, employers with employees eligible for New York State’s Paid Family Leave (PFL) Program have that to consider as well. As much of PFL was written to mirror the Federal FMLA program, leaves around the holidays are likely to be handled in a similar manner. However, keep in mind that FMLA is administered by the employer and PFL is an insured product, administered by the insurance carrier, so the decision on how to handle may vary slightly. Employers are encouraged to consult with their insurance carrier on how they are handling PFL leave around the holidays if there are any concerns.

As a reminder, PFL leaves which began in 2018 and carry across to 2019 are considered by the carrier as 2018 claims.  Therefore, they will remain subject to the 2018 benefit offering – 8 weeks and 50% of wages. While the length of PFL leave increases to 10 weeks in 2019, an employee who has exhausted their 8 weeks of PFL leave from 2018 is only eligible for the additional leave when:

  • The leave request is for a separate qualified event. For example, if the 2018 leave was used for bonding and in 2019, a family member becomes ill.
  • For a leave request that is continued from 2018 (i.e. bonding, or additional time for the same ill family member) the employee must return to work for 3 months before filing a request for leave

This reasoning is tied to DBL Law Section 204 (1) which reads: Successive periods of disability or family leave caused by the same or related injury or sickness shall be deemed a single period of disability or family leave only if separated by less than three months. In order to be considered as a new claim, there needs to be that separation of time. Remember that PFL eligibility is based on a rolling 52-week period, measured retroactively. So, in either scenario where the 2018 limit has been exhausted, the maximum time available in 2019 is the additional 2 weeks, until eligibility resets.

 

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