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Employer Can Count Holidays toward Intermittent FMLA Entitlement

    Client Alerts
  • September 28, 2007

Employees who qualify for job-protected leave under the Family and Medical Leave Act (“FMLA”) are entitled to up to 12 weeks of leave every 12 months.  Employers and employees using FMLA leave often become involved in disputes over how that leave entitlement is calculated.  A new case from the First Circuit Court of Appeals discusses whether company holidays should be included when counting intermittent leave taken by the employee under FMLA.  In Mellen v. Trustees of Boston University, the plaintiff requested intermittent FMLA leave to care for a sick parent.  She was terminated several days after the expiration of FMLA leave as calculated by the University, when she did not return to work.


The plaintiff sued under FMLA, claiming that the University wrongfully counted three paid holidays that fell during her absences as part of her 12-week FMLA leave entitlement.  She interpreted DOL regulations providing for intermittent leave as allowing the employer only to count actual time that would have been away from work as counting toward the entitlement.


The First Circuit disagreed, affirming summary judgment for the University.  In its decision, the court concluded that general FMLA regulations dealing with vacation days also apply to intermittent leave.  That rules states that holidays falling within a week count as part of the 12-week FMLA entitlement.  All of the holidays claimed by the plaintiff in this case occurred during weeks in which she did not work.  The decision implies that if the holidays occurred in weeks in which the employee worked some hours, they should not be counted toward the intermittent leave requirement.


This decision avoids a situation where employers must engage in detailed accounting of leave schedules versus work schedules to count up the actual number of days taken as FMLA leave.  As a side note, when the employee in this case took FMLA leave, her supervisor wrote her a letter criticizing her for her unprofessionalism, and complaining about the impact of her absences on the department’s operations.  These types of complaints from supervisors can get employees’ FMLA claims to a jury trial.  FMLA leave is a legal entitlement, and employer expressions of frustration over the manner in which it is exercised only lead to interference and retaliation claims.