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When FMLA and Holidays Collide

(Updated Jan. 11, 2010)

A case of first impression! While those words may mean little to you, dear readers, rest assured that when the First U.S. Circuit Court of Appeals issues a decision interpreting specific provisions of the Family and Medical Leave Act (FMLA) for the first time, we leap for joy — especially since the employer’s interpretation of the law prevailed. Plus, the court’s decision is practical enough to be meaningful for many of you. So if you want to know how to calculate FMLA leave for employees whose intermittent leave includes a holiday, read on!

FMLA Compliance: Practical Solutions for HR

A note for teacher
Linda Mellen began working for Boston University (BU) in 1977. In 1998, she was promoted to financial manager for BU’s School of Public Health. In September 2002, Francis Drolette was hired as the School of Public Health’s associate dean for administration and finance, becoming Mellen’s immediate superior. They had, at best, a rocky relationship.

Unfortunately for Mellen, her mother became very ill in the summer of 2003. As a result, she applied in writing to take FMLA leave to care for her, seeking leave from August 4 through October 3. She had a previously approved vacation scheduled for October 3 through October 28. In her FMLA request, she notified BU that if her mother’s condition didn’t improve, she would take the remainder of her FMLA leave after her scheduled vacation — between October 28 and November 18. Collectively, those two blocks of time constituted her full 12-week leave entitlement.

BU approved Mellen’s request for the dates she sought. In its response, the university clearly stated that if she failed to return to work on November 19, it would assume that she had voluntarily resigned her position. She didn’t respond to that letter and took her first block of leave as requested. On October 1, she informed Drolette that her mother hadn’t improved and she would be taking the second block of leave.

Drolette responded by letter, telling Mellen that she should have informed BU sooner that she would be taking the second block of time. Drolette further confirmed that Mellen should return to work on November 19 and should notify BU immediately if her plans changed for any reason. The letter went on to complain of her perceived lack of professionalism and other problems Drolette found in her work.

On October 23, Mellen sent Drolette a letter stating that she would be out of work through November 20 as a result of BU’s board of trustees’ decision to provide an “internal holiday” to all employees on November 17. She reasoned that since the day was a holiday for everyone, it shouldn’t count against her FMLA leave. Drolette saw things differently and responded in a letter dated October 24 that the holiday didn’t affect Mellen’s FMLA leave schedule and she was due back at work on November 19. Mellen didn’t respond to the letter or return to work. Ever.

Mellen did send BU a letter dated November 19, claiming she was “afraid” to return to work in light of Drolette’s October 24 letter. Her attorney sent a similar letter to the university’s counsel. On November 20 (before she received the November 19 letter), Drolette sent Mellen a letter stating that BU considered her to have resigned voluntarily as a result of her failure to return from FMLA leave. Mellen then sued her former employer in federal court in Massachusetts, claiming BU had violated her FMLA rights by miscalculating the amount of her leave. When the district court gave her a failing grade, she appealed to the First Circuit.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including FMLA

12 + 0 = 12
The First Circuit recognized that no other court has ruled on the precise issue of whether an employer violates the FMLA when it doesn’t allow an employee additional FMLA leave for holidays that occur while she takes a week off for intermittent leave. The answer, thankfully for you, is no. To get to that answer, the court interpreted two sections of the law that seem to contradict each other.

Mellen took intermittent leave in two large, separate blocks. To support her claim, she cited a provision that states “only the amount of leave actually taken” shall be counted as leave. According to her interpretation, since November 17 was a holiday, it wasn’t “leave actually taken” and therefore shouldn’t have counted toward her FMLA allotment. BU countered with a different provision that says if an employee takes a week of leave, holidays that occur within that week don’t act to extend the leave period.

Mellen’s argument failed. The court held that the reference to “leave actually taken” means the same thing as “leave actually used.” And the provision BU relied on explicitly says “the fact that a holiday may occur within the week taken as FMLA leave has no effect” on calculating the “amount of leave used.” Mellen’s “leave actually taken” provision was intended to protect an employee’s right to take off one day and prevent the employer from counting that day as one week (or from counting the leave as a full day if the employee takes only a half day for leave on a reduced schedule). Her interpretation would mean that an employee who takes 12 weeklong blocks of intermittent leave would receive more time off as a result of any intervening holidays than an employee who uses 12 weeks of continuous leave. The court wouldn’t allow that result, so it upheld the decision in BU’s favor. Mellen v. Trustees of Boston University, et al., 2007 WL 2745105 (1st Cir., 2007).

State-by-state comparison of 50 employment laws in all 50 states, including family and medical leave

No course credit
The news in this case is good. If an employee takes a full week off for intermittent leave and a holiday occurs during that week, she isn’t entitled to an additional day of leave under the FMLA. But be careful not to transfer that rationale to other situations. If, for example, an employee takes off every Monday for physical therapy and your office is closed Monday for Labor Day, you may not count that day as FMLA leave. Heed this lesson, and the teacher will give you an apple.

The First Circuit’s decision in this case remains good law even after the Department of Labor’s (DOL) recent changes to the FMLA regulations. Thus, holidays that fall within an employee’s full week of FMLA leave can be counted against that employee’s FMLA leave entitlement, regarless of whether that leave is characterized as intermittent leave.