Legal Updates
Employers Celebrate First Circuit Decision: Holidays Count Towards Intermittent FMLA Leave Of One Or More Weeks
In a case of first impression, the United States Court of Appeals for the First Circuit (the “First Circuit”) (which encompasses Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) recently announced that holidays falling within a week that an employee is out on intermittent Family and Medical Leave Act (“FMLA”) leave can be included in calculating an employee’s total FMLA leave entitlement. The FMLA grants an eligible employee up to 12 weeks of unpaid leave during a 12 month period for the employee’s or a family member’s serious health condition, or due to the birth, adoption or placement of a child in the employee’s care.
In Mellen v. Trustees of Boston University, the First Circuit held that the employer, Boston University (“BU”), properly calculated the maximum amount of intermittent FMLA leave time an employee could take by including three holidays that fell within multi-week leave FMLA periods.
Specifically, on July 17, 2003, Plaintiff Linda Mellen, a financial manager for BU’s School of Public Health, applied for leave from August 4 through October 3, and October 28 through November 18 to care for her ill mother. (Mellen had previously requested and been granted vacation from October 4 through October 27.) On July 31, 2003, BU’s Director of Personnel approved Mellen’s request for leave and reminded her that if Mellen failed to return to work following her leave, on November 19, she would be considered to have voluntarily resigned. On October 23, 2003, Mellen sent her direct supervisor a letter indicating that she had unilaterally extended her leave period by one day in light of a November 17 internal BU holiday. In a response letter dated October 29, 2003, Mellen’s supervisor informed Mellen that holidays did not serve to extend an employee’s FMLA entitlement and therefore Mellen should return to work as scheduled on November 19, 2003. The supervisor’s letter “further expressed concern about Mellen’s ‘lack of professionalism, responsibility, and clarity in [her] communicating regarding [her] family and medical leave and vacation plans.’”
Mellen failed to return to work at BU on November 19, 2003, or any date thereafter, and she did not call or communicate any further request for extended leave. In a letter dated November 19, 2003, Mellen claimed that she was frightened to return to work in light of her supervisor’s allegedly “threatening” letter of October 29, 2003.
Mellen filed suit against BU in the United States District for the District of Massachusetts (the “District Court”) alleging, among other claims, that BU interfered with her substantive rights under the FMLA and the Massachusetts Small Necessities Leave Act (“SNLA”) by miscalculating her leave entitlement. The District Court awarded summary judgment in BU’s favor on these claims, reasoning that BU properly calculated and provided Mellen with the requisite amount of FMLA leave.
On appeal to the First Circuit, Mellen relied on the FMLA Regulations, specifically, 29 C.F.R. § 825.205(a), which provides in relevant part, “[i]f 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.” Mellen contended that since her FMLA leave was intermittent, BU should have included only the days Mellen actually missed from work and not holidays in providing her with the requisite amount of leave. BU countered that holidays are to be counted against intermittent FMLA leave taken in an interval of one week or more, citing another FMLA regulation, 29 C.F.R. § 825.200(f), which 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 week is counted as a week of FMLA leave.”
The First Circuit held that the two regulations “fit together naturally” and affirmed the Court’s ruling that BU had properly included three holidays (Labor Day, Veterans’ Day and a November 17 internal holiday) in Mellen’s total FMLA leave. The First Circuit further explained that “if an employee’s intermittent leave includes a full, holiday-containing week, section 825.200(f) provides that the ‘amount of leave used’ includes the holiday” and “[n]othing in section 825.205(a) changes this result.”
Finally, the Court held that even if BU had incorrectly calculated the amount of Mellen’s FMLA leave, Mellen had nevertheless failed to obtain prior approval for intermittent leave.
The Court similarly rejected Mellen’s SNLA claim because she failed to provide BU with the required 7 days’ notice of her need for additional leave time as required by the SNLA when the extension is foreseeable. (Under the SNLA, eligible employees may take up to 24 hours of leave in addition to FMLA leave during any 12 month period for certain family-related events, such as taking a family member to a doctor’s appointment.)
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We recommend that employers review their FMLA and other leave law policies and procedures on an annual basis to ensure compliance with relevant federal and state laws. We are available to assist your organization with adopting and/or revising your policies relating to the FMLA or other leave laws, to provide training, or to address any questions that you may have regarding FMLA and state leave law compliance.
