First Circuit Rules That Holidays Count When Calculating “Intermittent” FMLA Leave
December 20, 2007
Matthew L. "Matt" Mitchell- Boston
In Mellen v. Trustees of Boston University, et al. (September 2007), the First Circuit examined “intermittent” leave entitlements under the Family and Medical Leave Act (FMLA). Addressing an issue of first impression among all circuits, the court concluded that holidays that occur during an employee’s intermittent FMLA leave count toward the employee’s total leave entitlement if the intermittent leave is taken in increments of a week or more. This case illustrates the complexity of FMLA regulations and offers some clarity on the subject of intermittent FMLA leaves.
FMLA Basics
Under the FMLA, covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: (1) birth of a child and to care for the newborn child, (2) placement of a child with the employee for adoption or foster care, (3) care for a family member (child, spouse, or parent) with a serious health condition, or (4) employee’s own serious health condition makes the employee unable to perform the functions of his or her job. “Intermittent” FMLA leave is leave taken in separate blocks of time due to a single illness or injury, rather than for one continuous period, and may include leave of periods from one hour or more to several weeks.
Just the Facts
Linda Mellen was employed as a financial manager at Boston University (BU). On July 17, 2003, she applied in writing for leave so that she could care for her ailing mother. She requested her leave be intermittent and taken in two blocks: August 4 though October 3, 2003 and October 28 through November 18, 2003. In a letter dated July 31, 2003, BU’s director of personnel approved Mellen’s request for leave. The approval letter instructed, however, that Mellen’s failure to return to work on November 19, 2003 would be considered a “voluntary resignation” and result in Mellen’s termination.
In October 2003, Mellen informed her supervisor that she expected to be out of work through November 20, noting that she had extended her leave period by one day in light of an internal BU holiday that was scheduled for Monday, November 17, 2003. In a response letter dated October 29, her supervisor stated that she had been advised that holidays did not serve to extend an employee’s allowed FMLA leave and therefore she expected Mellen back at work on Wednesday, November 19.
Mellen did not return to work on November 19, nor did she call or communicate to BU any request for extended leave. Pursuant to the terms of her FMLA leave approval letter, Mellen’s employment at BU was then terminated.
Mellen sued BU in federal district court, claiming, among other things, that BU interfered with her substantive rights under the FMLA by miscalculating her leave period. Her FMLA claim was dismissed by the district court, and she appealed to the First Circuit.
“Straining and Awkward Constructions”
The primary issue on appeal was whether BU had “properly calculated and provided Mellen with the requisite amount of leave.” Mellen argued that she was denied her full FMLA leave entitlement because BU did not extend her leave to account for holidays that fell within it. Mellen argued that because her leave was intermittent, only days actually missed from work, and not holidays, should count as “leave used.” In support of this position, Mellen cited a Department of Labor regulation (29 C.F.R. §825.205(a)) that provides: “If an employee takes leave on an intermittent or reduced schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled.”
BU countered with a separate regulation (29 C.F.R. §825.200(f)) that instructs: “For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.”
The court noted that there was no published precedent on the consequences of an employee taking intermittent leave in a period of a week or more when one (or more) of the weeks contains a holiday.
Reconciling the Regulations
Despite the “straining or awkward constructions” offered by the parties, the court submitted that the two regulations in fact “work together.” It concluded that if an employee’s intermittent leave includes a full, holiday-inclusive week, section 825.200(f) governs and provides that the “amount of leave used” includes holidays. The court reasoned that the language in §825.205(a) that defines intermittent leave as “leave actually taken” is meant only to “ensure that an employer does not claim that an employee who takes off one day during a five-day work week has taken off the entire week … Its purpose is not to give an advantage to an employee who takes off five weeks but designates it as intermittent leave over an employee who takes off five weeks as continuous FMLA leave.”
Thus, under the First Circuit’s interpretation, holidays are counted as intermittent leave “actually taken” if the intermittent leave consists of increments of one week or more. Therefore, Mellen had been provided the proper amount of leave by BU.
Significance of the Ruling
Although it is unclear whether the holding in Mellon v. Trustees of Boston University, et al. will be adopted outside the First Circuit, the case does illustrate the complexity of FMLA interpretation compliance. Since its inception in 1993, application of the FMLA has confused many. As a result, close and careful analysis is necessary.
For more information, email Matthew L. Mitchell at matthew.mitchell@hklaw.com or call toll free, 1-888-688-8500.