FMLA Leave Cannot be Assessed if Employee Not Required to Report to Work

The U.S. District Court for the District of Alaska, in Acosta v. State of Alaska, has held that an employer could not count the time that a rotational employee was not scheduled to work as part of his leave entitlement under the Family and Medical Leave Act ("FMLA").

Background. The employer scheduled some of its employees on a rotational basis, meaning they work for one or more weeks followed by one or more weeks off. With respect to FMLA compliance, the employer interpreted the act to require it to provide only 12 consecutive weeks of leave to rotational employees, regardless of whether they were actually scheduled to work throughout the weeks.

The U.S. Department of Labor ("DOL") responded by suing the employer under FMLA, seeking injunctive relief to stop the employer from calculating FMLA leave for its rotational employees by including non-work weeks.

District Court. The employer requested that the court dismiss the DOL's complaint, saying its interpretation of the FMLA's 12-week leave entitlement, as applied to rotational employees, was unreasonable. The court disagreed with the employer, and allowed the DOL's claim to move forward.

The DOL next requested the court to rule that the employer's practice of calculating rotational employees' FMLA leave violated FMLA and to enjoin the employer from continuing to violate FMLA in this manner.

The court explained that the FMLA entitles an eligible employee to "12 workweeks" of FMLA leave each year. The court noted that to adopt the employer's interpretation of FMLA would essentially replace the entitlement to "12 workweeks" of leave under FMLA with "12 weeks" of leave.

The court next observed that the DOL's regulations interpreting FMLA were entitled to judicial deference. The relevant DOL regulations addressed situations of FMLA leave entitlement where an employer's business activity has temporarily ceased, and employees are not expected to report to work for one or more weeks (e.g., when a school is closed during the winter holidays or summer vacation). The court determined that, under these regulations, the days in which the business activities have ceased do not count against the employee's FMLA leave entitlement.

In response, the employer argued that the closing of a business during a leave period differs from the situation of a rotational employee because rotational employees on FMLA leave during a nonscheduled week are absent from work while the employer's operations are ongoing, and this absence affects the employer's scheduling and expenses during that week. The employer further asserted that the DOL's interpretation would create complexity and unpredictability under the leave terms of the employer's collective bargaining agreement ("CBA") with its employees, as well as unequal treatment of similarly situated employees.

The court disagreed with the employer's contentions, finding that rotational employees were not absent from work but rather ineligible for work like employees during a business closing. The court noted that any complexity created by the employer's CBA did not permit it to deprive rotational employees of their FMLA leave entitlement.

Employer Takeaway. As demonstrated in Acosta, for employers of seasonal and rotational employees who are not be scheduled to work for consecutive workweeks, calculating FMLA leave can be challenging. To avoid potential legal claims, employers are advised to exercise caution and engage qualified legal counsel for assistance.