How is FMLA Counted During Snow Days?

With school closures already occurring during this school year due to inclement weather (and more snow days likely to come, unfortunately), school districts need to understand how to properly count their employees' FMLA usage on such days. An eligible employee is allowed up to 12 weeks of unpaid FMLA leave in a 12 month period for any of the following reasons:

• The employee's need to care for a newborn child within 12 months following the birth;
• Placement of a child with the employee for adoption or foster care within 12 months after the date of placement;
• To care for a family member, including the employee's spouse, child (under 18 or disabled), domestic partner, or parent of the employee who has a serious health condition;
• The employee's own serious health condition that makes the employee unable to perform the essential functions of his/her job;
• To care for a family member of the Armed Forces, including a member of the National Guard or Reserves, if the employee is a spouse, son, daughter, parent, or next of kin of the member (on a rolling forward basis); and
• For up to 26 work weeks, for any qualifying exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty in the Armed Forces in support of a war or similar combat operation.

Schools typically struggle with how to apply FMLA leave on snow days. The FMLA regulations do not directly address the question. As a result, there are often questions asked about whether FMLA should be counted on a school day where an employee is not required to work due to a snow cancellation. In order to properly track FMLA usage for snow days, school districts have traditionally applied the general rule for counting FMLA leave during a holiday week by treating the snow day as a "holiday" for FMLA purposes. The FMLA holiday rule 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.

Therefore, if an employee is on an approved FMLA leave for the entire week, then a school district can still count the snow day during that week against the employee's FMLA allotment. However, if an employee only worked part of the week due to being on an intermittent or reduced schedule FMLA leave, then only the days the employee would have been expected to report for work should be counted as FMLA leave. In other words, only the amount of FMLA leave actually taken while on intermittent/reduced schedule leave may be charged; the snow day is not counted toward the employee's FMLA allotment.

Even though FMLA leave is unpaid, a school district may require an employee to concurrently use paid leave benefits such as accrued vacation, personal, or sick days. The ability to do so is dictated by district policy, or collective bargaining agreement (if applicable) and the employee's reason for taking FMLA leave. A school district should also examine its policies and collective bargaining agreements to determine whether an employee is otherwise entitled to compensation in the event of a snow day cancellation.

If you have any questions about managing your employees' FMLA leave on snow days, please contact Kurt Graham at (616) 608-1144 | kgraham@clarkhill.com, or your Clark Hill Education Law attorney.