The simple and straightforward answer to the question of paying employees for Holidays while they are concurrently receiving FMLA leave is this: Treat them as you would any other employee on NON FMLA leave. This issue is governed by 29 C.F.R. § 825.209(h), which states:
“An employee’s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer’s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate).”
Basically, the FORM of leave shouldn’t matter and whatever the form of leave is, they should all have the same terms and conditions. That is not to say that paid and non-paid leave employees should be treated the same however. For example: If an employee is on paid leave, and if the FMLA employee is also on paid FMLA leave, then both should receive the same treatment. If a non-paid leave employee does not receive holiday pay, then the non-paid FMLA leave employee is not entitled to holiday pay.
These terms and conditions are typically spelled out in your employee handbook and is a good reason to have it updated and reviewed by an attorney.
The benefits of having an employee handbook include having a written copy of the company’s policies and procedures, outlining employee rights, providing terms of employment and more. Having something that specifies the roles of each the employee and the company can reduce lawsuits because it reduces any miscommunication because of unclear employment relationships. Using the handbook to outline the terms and conditions of holiday pay while on leave can help to insulate your company from litigation.
Content errors commonly made by employers
A costly mistake employers often make is to be inconsistent with their enforcement of the policies in place. Not only does the company need to adhere to their policies but employees need to be held to the policies equally as well or else the company may face a discrimination lawsuit.
If you have questions about FMLA leave, Goldman & Ehrlich has answers for both employees and employers. Contact us online today or call us at (312)332-6733.