9th Circuit Overturns Ruling That Increased FMLA Leave for Rotational Employees

By Jeffrey Rhodes March 30, 2021
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an Alaska Marine Highway ferry

​The 9th U.S. Circuit Court of Appeals reversed a decision of a district court that would have expanded the leave entitlement of the Family and Medical Leave Act (FMLA) from 12 weeks to 24 weeks a year for employees who work a rotational schedule of seven straight workdays followed by seven days off.

The Alaska Marine Highway System (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 straight 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.

The state of Alaska had interpreted the FMLA as requiring the AMHS to provide only 12 consecutive weeks of leave a year to rotational employees, even if they are only scheduled to work for six of those 12 consecutive weeks. The U.S. Department of Labor (DOL) sued under the FMLA, seeking to enjoin the state from calculating FMLA for rotational employees as consecutive blocks of weeks and to recover monetary damages and other relief on behalf of any rotational employees harmed by these calculations.

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

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 AMHS's scheduling and expenses during the off weeks.

Nevertheless, the district court granted partial summary judgment against the state of Alaska. The DOL and the state of Alaska agreed to the entry of an injunction barring the state from calculating FMLA for rotational employees as consecutive blocks of weeks, and the state of Alaska appealed the ruling.

On appeal, the 9th Circuit agreed with the state of Alaska that the FMLA only required it to provide 12 consecutive weeks of leave, whether rotational employees are scheduled to work throughout the weeks or not. The 9th Circuit found that Congress intended the term "workweek" to have the same meaning under the FMLA as it has had under the Fair Labor Standards Act for decades, where it refers to a consecutive seven-day period. The court found that the DOL's interpretation was not entitled to deference and did not specifically address the situation in which an employee was not scheduled to work for seven days or more.

As a result, the 9th Circuit reversed the district court's decision and entered judgment for the state of Alaska.

Scalia v. State of Alaska, 9th Cir., No. 19-35824 (Jan. 15, 2021).

Professional Pointer: Calculating FMLA leave is complex when dealing with the atypical work schedules of rotational employees. Nevertheless, this decision suggests that the courts will closely adhere to the specific language of the FMLA even in these unusual circumstances.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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