When holidays fall within weeks of intermittent FMLA leave
Issue:

One of your employees is taking two blocks of leave under the Family and Medical Leave Act (FMLA) to care for her ailing mother. There is a holiday during her last week of leave so instead of returning on a Monday, she wants to return on a Tuesday to “make up” for the holiday. She cites to a Labor Department regulation that states: “If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled.” Can you count the holiday against the employee’s FMLA leave entitlement?

Answer:    

Yes. A federal appeals court has held that another Labor Department regulation governs in such a situation. That regulation states that in calculating the amount of FMLA leave taken “the fact that a holiday may occur within the week taken as FMLA leave has no effect.”

The court held that the two regulations “fit together naturally.” One is a general provision, while the other provides specific guidelines for employees taking intermittent leave. According to the court, the applicability of the general provision to intermittent leave is assumed within the regulations. The court emphasized that the general provision refers to a holiday that occurs within the week taken as FMLA leave. Thus, the court concluded that if an employee’s intermittent leave includes a full, holiday-containing week, the amount of leave used includes the holiday. Nothing in the intermittent leave regulation changes that result. The court reasoned that the “amount of leave actually taken” to which the intermittent leave regulation refers is the “amount of leave used” as defined in the general regulation.

Such a construction, the court said, does not render the intermittent leave regulation meaningless. Its purpose is 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. The regulation’s “purpose is not to give an advantage to an employee who takes off five weeks but designates it intermittent leave over an employee who takes off five weeks as continuous FMLA leave.”

Cite: Mellen v Trustees of Boston University (1stCir 2007) 90 EPD ¶42,965, interpreting 29 CFR 825.200(f) and 29 CFR 825.205(a).
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