Ask the Experts: Unpaid Holidays, Religion and Leave

On Sep 21, 2023

We are considering closing the office the day before an upcoming holiday, giving employees an unpaid day off. How would this work for our exempt employees?

The Fair Labor Standards Act generally requires that exempt employees – employees who are exempt from the law’s overtime requirement – be paid their regular salary regardless of the number of hours they work in a workweek. If your exempt employees are otherwise working the week of the holiday, you can’t designate it as an unpaid day for them.

As with nonexempt employees, you can require exempt employees to use accrued vacation or paid time off (PTO) to cover the closure. However, exempt employees who don’t have accrued vacation or PTO available to cover the day off still need to be paid during the closure unless they didn’t perform any work during the workweek.

What do I need to know about religious accommodations?

Employers with 15 or more employees are required by federal law to provide reasonable accommodations for an employee’s sincerely held religious beliefs, practices, and observances, unless doing so would create an undue hardship on the employer.

The need for a religious accommodation generally arises when an employee’s religious beliefs or practices conflict with a specific task or requirement of the position or application process. For instance, an employee might need a change to their schedule to allow for prayer during the workday, to not be scheduled on Sundays, or to wear a head covering or hairstyle that is outside of your dress code.

Undue hardship – as it applies to religious accommodations specifically – has recently been reinterpreted by the Supreme Court to mean “a substantial increased cost in relation to the conduct of [an employer’s] particular business.” Most accommodations, particularly those related to scheduling and dress codes, will not cause an undue hardship.

When an employee requests a religious accommodation, you can ask them to describe their sincerely held religious belief, practice, or observance that requires accommodation. We suggest that you do this by having the employee complete a Request for Religious Accommodation Form. If you require this documentation for one religious accommodation request, you should require it for all – don’t get caught in a discrimination claim by being more lenient towards some religions than others.

What is intermittent leave under the FMLA, and when can employees use it?

Under the Family and Medical Leave Act (FMLA), intermittent leave is leave taken in multiple blocks of time, each less than the employee’s full FMLA entitlement, for the same ongoing reason. Examples of intermittent leave include an employee taking a day each week for ongoing cancer treatments or a pregnant employee taking leave as needed for severe morning sickness.

Intermittent leave can be taken whenever it’s medically necessary. It can also be taken in certain instances related to covered service members and for baby bonding, though intermittent bonding leave requires employer approval.

Employees should be allowed to take intermittent leave in the smallest blocks of time you use to track any other form of leave, but you can’t require them to take leave in increments greater than an hour.

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