The Employer's Legal Resource: Tenth Circuit Holds That Employers Are Not Always Required to Pay Holiday Leave During FMLA Leave


In Keeler v. Aramark, a hospital food service worker requested and was approved for a series of continuous FMLA leave for a neck abscess. After a two month absence, Keeler returned to work. However, Keeler alleged that Aramark violated his FMLA rights because it did not pay him a holiday bonus for the Labor Day holiday that occurred while he was on leave and because it did not permit him to return to work until he was released by his doctor without restrictions.

The Tenth Circuit found that Aramark did not violate the FMLA by failing to pay Keeler holiday leave. While an employer may not use an employee’s use of FMLA leave as a negative factor in an employment decisions, an employer may deny a bonus or other payment to an employee who has not earned the bonus or payment due to FMLA leave as long as the employer treats other employees who were absent for non-FMLA reasons in the same manner. Aramark presented undisputed evidence that it does not provide holiday pay to employees on any type of unpaid leave during the actual holiday or to employees who do not work the last regularly scheduled workday before the holiday, unless their absences were previously approved. Keeler was on unpaid leave during the Labor Day holiday and was absent on the last workday before Labor Day without prior approval. Accordingly, the Tenth Circuit ruled that Aramark did not violate Keeler’s FMLA rights.

The Tenth Circuit also held that Aramark did not retaliate against Keeler by not permitting him to return to work earlier. Aramark presented evidence that Center for Disease Control guidelines prevented Keeler from working in a hospital until he no longer had a draining wound. Furthermore, Keeler’s own doctor did not release him because of the draining wound. In what seems like an obvious ruling, the Tenth Circuit held that Aramark was not required to permit Keeler to return to his job in a hospital until he took care of the draining abscess in his neck, in accordance with his doctor’s orders.

By Kenneth T. Short,

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Justin B. Munn

Justin B. Munn

Justin represents clients throughout Oklahoma in family law, civil litigation, guardianships, adoptions, estate planning, trust and probate matters. 

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10.07.18 Legal Insights with Kevin Coutant and Lauren Brown