Employees who work a rotating schedule of one week on, one week off, may have their “off” weeks counted against their 12-week leave entitlement under the federal Family and Medical Leave Act (FMLA), according to the U.S. Ninth Circuit Court of Appeals. The court ruled on a dispute between the Department of Labor (DOL) and the State of Alaska, in which DOL claimed that Alaska was counting FMLA leave incorrectly for its rotational employees who typically work an 80-hour workweek, followed by a whole week off. Alaska’s policy was to count 12 calendar weeks as the FMLA leave entitlement when an employee took continuous blocks of FMLA leave. The DOL argued that these employees were entitled to leave for each of the 12 weeks in which they otherwise would have worked, covering a total of 24 calendar weeks. In a divided 2-1 decision, the Ninth Circuit sided with Alaska, allowing the “off” weeks to be counted.
When FMLA leave is taken as one continuous block of leave, the leave entitlement typically is determined by counting 12 calendar weeks from the first day of leave, regardless of the employee’s usual work schedule. In contrast, when an employee takes FMLA leave intermittently or on a reduced schedule, only the actual hours taken off of work are counted as FMLA leave. The employee is then entitled to take FMLA leave for the number of hours equivalent to 12 workweeks per the employee’s usual schedule.
The FMLA doesn’t specifically define the term “workweek” as it relates to a continuous leave of absence, so the court relied on the definition of “workweek” under the Fair Labor Standards Act (FLSA) as a recurring, pre-determined fixed period of seven consecutive days. Based on that definition, the court ruled that each workweek an employer is operational counts against an employee’s FMLA leave entitlement regardless of the employee’s individual work schedule (Scalia v. State of Alaska, 9th Cir, Jan. 2021).
Tips: We anticipate that the DOL will appeal; we’ll report here on any further developments. In the meantime, we recommend checking with your Vigilant Law Group employment attorney when determining the FMLA entitlement for an employee with an unusual or nonstandard work schedule.