October 22, 2007 / Issue No. 5-07
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Court Puts “No-Match” Rule on Hold
Labor Relations
AGC Holds Basic Trades Forum and Multiemployer Pension Meeting
Salts Without Genuine Interest in Employment Are Not Protected from Discriminatory Refusal to Hire
Contractor’s Reasonably Based Lawsuit Against Unions Can’t Be an Unfair Labor Practice
Contractors Expect to Raise Open Shop Pay 4.8%, Staff Pay by 5.1%
Year-to-Date Collective Bargaining Yields 4.4% Increases
Audio Guidance on FLSA Available for Download
Family & Medical Leave
FMLA Does Not Guarantee Full Pay to Employee on Light Duty
Holidays Count in Calculation of FMLA Intermittent Leave
Workforce Development
AGC Releases Video Message on Workforce Crisis
AGC Offers New Education, Training & Development Resources

  Holidays Count in Calculation of FMLA Intermittent Leave
In a case of first impression, the U.S. Court of Appeals for the First Circuit (ME, MA, NH, PR, RI) has held that holidays may be counted against intermittent leave of a week or more taken under the Family and Medical Leave Act (FMLA).

The plaintiff in the case, Linda Mellen, worked for Boston University as a financial manager.  In July 2003, she applied for FMLA leave to care for her ailing mother from August 4 though October 3 and, if necessary, from October 28 thought November 18.  The gap encompassed a previously granted 15-day vacation.  Her request was approved in a letter that also warned Mellen that she would be considered to have resigned voluntarily if she failed to return to work on November 19.  Mellen began her leave as planned and, on October 1, informed her supervisor, Frances Drolette, that she needed to take the second block of leave.  Drolette, who had a history of friction with Mellen, expressed concern about Mellen’s failure to communicate her leave plans with more advanced notice and clarity, as well as about her work performance.  Drolette stated that it was her understanding that Mellen would return to work on November 19 and that Mellen must communicate as soon as possible if her plans change at all.  In an October 23 letter, Mellen informed Drolette that she expected to be out of work through November 20, noting that she extended her leave by one day in light of a November 17 company holiday.  By letter dated October 29, Drolette responded that she had been advised that holidays did not serve to extend an employee’s allowed FMLA leave and that she still expected Mellen back at work on November 19.  Mellen did not request further leave and did not show up for work on November 19 or anytime thereafter.  In correspondence between Mellen and the university, Mellen indicated that she was afraid to return to work, and the university indicated that it considered her failure to return to work on November 19 as a voluntary resignation. 

Mellen sued the university under the FMLA and a similar state law.  She claimed that the university denied her the full number of FMLA days owed to her because it did not extend her leave to account for three holidays that fell within the period of her leave.  She argued that, since her leave was intermittent, only the days on which she actually missed work, and not holidays, should be counted.  The court disagreed.

The FMLA provides that leave may be taken intermittently or on a reduced leave schedule when medically necessary.  Section 825.205(a) of the implementing regulations state that, in cases of intermittent leave, “only the amount of leave actually taken may be counted toward the 12 weeks of leave to which the employee is entitled.”  Section 825.200(f) states, “For purposes of determining the amount of leave used by an employee, 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 court found no conflict between the two regulatory provisions.  Section 825.200 sets forth  general provisions applicable to all types of leave, while section 825.205 provides specific guidelines for intermittent leave.  “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,” the court explained.  “Nothing in section 825.205(a) changes this result.  The ‘amount of leave actually taken’ to which section 825.205(a) refers is the ‘amount of leave used’ defined in section 825.200(f).”  The purpose of section 825.205(a), according to the court, is to prevent an employer from treating an employee who takes off only one day in a workweek as having taken off the whole week or treating an employee who works half days under a reduced work schedule as having taken off more than half a day.  Accordingly, the university properly calculated the amount of Mellen’s leave.

The court further found that, even if the university had miscalculated, Mellen’s case would still fail because intermittent leave requires prior approval by the employer.  Drolette’s October 29 letter expressed disapproval of Mellen’s intent to extend her leave and reiterated the expectation that Mellen would return to work on November 19.

Mellen v. Trustees of Boston University, Case No. 07-1151 (1st Cirt., 9/21/07). [ return to top ]