Employees May Use FMLA Leave in Nonconsecutive Weeks


By Jeffrey Rhodes January 8, 2019

​The Alaska Marine Highway System (AMHS) cannot count as part of a rotational employee's Family and Medical Leave Act (FMLA) leave those weeks that the employee is not scheduled to work, a federal district court held.

AMHS is a state agency that employs workers on its ferries to transport passengers along the coasts of Alaska. AMHS schedules some vessel employees on a rotational basis, meaning they work for one or more weeks followed by one or more weeks off. When these employees have serious medical conditions, the question arises as to whether they must take weeks of FMLA leave consecutively or can use that leave for only the weeks in which they are scheduled to work. The latter interpretation would extend rotational employees' FMLA leave to last more than 12 calendar weeks at a time.

AMHS interpreted the act as requiring it to provide only 12 consecutive weeks of leave, whether the rotational employees are scheduled to work throughout the weeks or not. In response, the U.S. Department of Labor (DOL) sued AMHS under the FMLA, seeking injunctive relief to prevent AMHS from calculating FMLA for rotational employees as consecutive blocks of weeks, and monetary damages and other relief on behalf of any rotational employees harmed by the defendant's calculations.

AMHS moved to dismiss the DOL's complaint for failure to state a plausible claim because the DOL's interpretation of the FMLA 12-week leave entitlement as it applies to rotational employees was not reasonable. The court disagreed and allowed the claim to proceed as based on a reasonable interpretation of the FMLA.

After this ruling, the DOL sought partial summary judgment to rule that the AMHS practice of calculating FMLA leave for rotational employees violates the act. The DOL also sought a permanent injunction barring AMHS from continuing to violate the FMLA. AMHS filed a cross-motion for summary judgment arguing that its calculations of FMLA leave for rotational employees do not violate the act.

The court noted that the act itself provides that an eligible employee is entitled to "12 workweeks" of FMLA leave each year. Thus, to adopt the AMHS interpretation of the FMLA as providing consecutive blocks of leave for a rotational employee of up to 12 weeks a year would essentially replace the entitlement to "12 workweeks" of leave under the act with only "12 weeks" of leave for an eligible employee.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The court also determined that the DOL's regulations interpreting the FMLA were entitled to judicial deference. The DOL regulations address the situation of FMLA leave entitlement when an employer's business activity has temporarily ceased, and employees are not expected to report for work for one or more weeks, such as when a school is closed for the winter holidays or during summer vacation. According to the regulations, for these employers, the days in which the business activities have ceased do not count against the employee's FMLA leave entitlement.

AMHS argued, however, that the closing of a business during a leave period differs from the situation of a rotational employee not scheduled for work during one or more calendar weeks. Rotational employees on FMLA leave during a nonscheduled week are absent from work while the employer's operations are still occurring, and this absence from the rotational employee pool affects scheduling and expenses during that week.

AMHS further argued that the DOL's interpretation would lead to complexity and unpredictability under the leave terms of the AMHS collective bargaining agreement with its employees, as well as unequal treatment of similarly situated employees.

The court disagreed, finding that rotational employees not scheduled to work were not missing but were not eligible to work like employees during a business closing. The court also found that any complexity created by the collective bargaining agreement could not excuse AMHS for depriving rotational employees of their FMLA rights. The court thus granted partial summary judgment to the DOL, but reserved for further litigation the question of whether or not to grant a permanent injunction against AMHS.

Acosta v. State of Alaska, D. Alaska, No. 1:17-cv-0009-HRH (Nov. 6, 2018).

Professional Pointer: Calculating FMLA leave can be especially complex for employers of seasonal or rotational employees, who may not be scheduled to work for consecutive workweeks. In these situations, employers should generally err on the side of caution in calculating employees' FMLA leave entitlement to avoid potential legal claims.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Family and Medical Leave Act.]


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