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October 2, 2007
Holidays Falling During Leave Count Towards 12 Weeks of FMLA Leave
The Code of Federal Regulations provides that holiday leave counts towards the employee's entitlement to 12 weeks of leave under the FMLA. See 29 CFR 825.220(f). There has not been much authority discussing this provision.
Mellen v. Trustees of Boston University, ___F. 3d ___, 2007 U.S. App. Lexis 22518 (1s Cir. Sept. 21, 2007), is one such case. Because the employee was taking intermittent FMLA leave, she argued that only work days should count towards her 12 weeks. The 1st Circuit disagreed. Relying on 29 CFR 825.220(f) the court held that holiday leave counts towards the 12 weeks.
This was a tough decision. If the intent of the FMLA is to allow employees to take 12 weeks worth of leave, it seems odd to apply a holiday to those 12 weeks worth of leave.
Mitchell H. Rubinstein
October 2, 2007 in Employment Law | Permalink
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Comments
if you don't count holidays, why count weekends (if the business is closed on weekends)?
the FMLA offer 12 workweeks (or the equivalent) of leave; not 12x7 days (unless you always work seven days), not 12x5 days (unless you always work five days/week), nor 12x40 hours (unless you always work 40 hours/week), or any other static number; it's 12 of your workweeks.
holidays aren't mandated; so, if the employer closes for a holiday (or over the weekend) that doesn't change a workweek into something lesser. (Note: similarly, the employer must pay the usual fixed salary to exempt employees, regardless of weekend or holiday closures during a working workweek.)
mellen's co-workers got three holidays while she was off for a few months (12 weeks plus her vacation, plus her self-granted-but-unauthorized one-day FMLA extension). just because the co-workers weren't working on three holidays didn't mean mellen wasn't on leave (i.e., employees on leave are on leave even during the weekends, aren't they?).
Posted by: kent | Oct 2, 2007 5:42:42 PM
