Thanks for the great feedback we received on our post earlier this week about Hurricane Sandy's impact on employers when it comes to issues arising under the Family and Medical Leave Act.  In your feedback, I received several requests to address the following question:

If an employer shuts down because of damage related to the Hurricane, and an employee was out on FMLA leave at the time the office closed, is the employee charged FMLA leave for these days?

The FMLA regulations (at 29 CFR § 825.200(h)) clearly state how an employer should calculate FMLA leave when it shuts down its operations:

If for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.

Thus, the regulations indicate that, if an employer's business is closed for a week or more because of the natural disaster, the days that the business is shuttered could not count against an employee's FMLA leave allotment. 

Keep in mind: in these situations, you cannot count the time against the employee's FMLA allotment even if it is obvious the employee would not have been able to perform the duties of the job during the break. Listen to our previous podcast here for more information on how to calculate FMLA leave during periods in which the employer is closed for business.