Are You Prepared for the Holidays?
Holidays mean something different to everyone, but they have some common issues for employers in the workplace context, including requests for time off from work, FMLA time, and requests for religious accommodation. Of course, employers must also be very aware of issues raised by holiday parties.
Generally, there is no legal obligation to provide incentive pay to an employee who takes a day off on a day that is recognized as a holiday. Unless there is a collective bargaining or other agreement to the contrary, holidays are generally considered regular workdays for which an employee is entitled only to his/her regular pay. Likewise, overtime is only payable for work on a holiday if he/she meets the standard requirements for overtime, i.e. working more than 40 hours in one workweek.
What happens when an employee takes FMLA time during a week in which a holiday is recognized?
If a holiday falls within a week in which the employee is taking a full week of FMLA leave, the entire week is counted as FMLA leave and the holiday has no effect. However, if the employee is using FMLA leave in increments of less than one week, the holiday will not count against the FMLA entitlement unless the employee was otherwise scheduled and expected to work on that holiday. In counting that time, be sure to account for the actual workweek. For instance, if the employer is closed on Christmas Day, there are only four workdays that week. Therefore, if the employee works one day, misses three workdays, and does not work on the holiday because the employer is closed, he/she has actually only used ¾ of a week of FMLA leave, rather than 4/5, which would be the case if he/she worked one day of a non-holiday week.
If the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (for example, a school closing for the holidays or an employer closing a facility for repairs or some other reason), the days on which the employer is closed do not count against the employee’s FMLA leave entitlement.
How does FMLA affect policies regarding compensating an employee for the holiday? Suppose an employer has a policy that provides for holiday pay as long as the employee works the day before, and suppose further than an employee is on FMLA leave the day before. The situation is complicated by whether the employer requires/permits FMLA time to run concurrently with vacation time. In that case, if the employee on FMLA time is using vacation time concurrently, the employer has to treat that employee like any other employee who is not using FMLA time. In other words, if an employee not using FMLA is entitled to holiday pay if he/she used vacation time the day before, the employer would have to do the same thing for an employee using FMLA who is also using vacation time concurrently. Similarly, if the employer’s policy is that an employee who is absent the day before a holiday for any reason, even paid vacation, is not entitled to holiday pay, the employer would not have to pay the employee on FMLA leave.
Accommodation of Religious Observances
Requests for accommodation of religious beliefs often takes the form of time off for days that are not part of the employer’s regular holiday schedule. Such a request can be a form of reasonable accommodation as long as granting that request would not create an undue hardship for the employer. Some considerations under the EEOC of what can cause an undue hardship in this context include whether it is “costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.” Otherwise, such requests must be accommodated. Some options for doing so include flexible work schedules, splitting the day, or voluntary switching of shifts between employees.
Issues surrounding holiday parties of course include all of the obvious potential problems that can result from serving alcohol and resultant inappropriate behavior. Beyond those clear concerns are other issues that employers sometimes fail to consider, including workers’ compensation. Consider this hypothetical. An employer sponsored an employee luncheon at one of its two locations. All employees from both locations were invited but not pressured or required to attend. Among the purposes of the luncheon was to celebrate the end of the year, improve or maintain company morale, to thank everyone for job well done, and to help with employee retention. An employee from one of the other locations decided to attend. He claimed he assumed the time to attend would be paid (unlike his normal lunch period) and so he did not clock out for the time it took for him to travel to the second location, attend the party, and travel back to his location to continue working. As he was traveling back from the party to his worksite, he was involved in a motor vehicle accident and was injured. The injury was found to be work-related for purposes of his workers’ compensation claim, in part because the employer was offering the party for its own benefit in enhancing employee goodwill.
These cautions are not to put a damper on the holiday spirit. . . but to encourage employers to go into the holiday season aware of its potential for workplace issues.
Anne-Marie Storey | Partner
The Graham Building | 84 Harlow Street
P.O. Box 1401 | Bangor, Maine 04402-1401
tel: 207.947.4501 | fax: 207.941.9715