The off-week hours of rotational workers may count against FMLA leave, a federal judge reluctantly decided in a recent U.S. District Court ruling.
The Oklahoma judge ruled for a trucking firm in an FMLA interference claim by a fired dispatcher who failed to return to work after he exhausted his 12 weeks of job-protected FMLA leave entitlement. The case is Murphy v. John Christner Trucking, LLC (Aug. 15, 2012).
The 51-year-old contended that since he ordinarily worked one week on and one week off, JCT should not have charged FMLA leave time against weeks during which he would have been off the clock. JCT countered that nothing in the FMLA statute prohibits it from applying FMLA leave time against weeks during which Murphy typically would have been off duty.
JCT argued that FMLA leave calculation should not be based on an “actual workweek” because if FMLA leave applied to only the weeks that Murphy actually would have worked, then JCT would be required to hold his job open for twice as long: a total of 24 weeks instead of 12.
Murphy worked an 84-hour workweek schedule — with seven days on and seven days off — for more than four years at JCT before taking FMLA leave. JCT calculated his leave time by multiplying 12 hours per day times seven days per week (84 hours). JCT then divided the weekly hours (84) by two for an average of 42 hours per week. In sum, the company determined Murphy’s 12-week FMLA leave limit and expiration date by multiplying the hours per week (42) by 12 to account for 504 hours of leave time.
Murphy had first used two weeks of his FMLA leave after undergoing angioplasty. Upon doctor’s release, he returned to work, but three weeks later, he again needed FMLA leave after requiring emergency coronary stent surgery. He never provided notice of his intent to return to work and failed to return at the end of his FMLA leave.
JCT’s employee handbook states that “if an employee fails to return to work from FMLA leave or fails to request an extension of the FMLA leave, the employee may be considered to have abandoned his or her job and it may be considered a voluntary termination of employment.”
In seeking a comparable court case, the district judge examined Truit v. Doyon Drilling, Inc. (D. Alaska, June 17, 2010), but he declined to follow the conclusion reached in Truit primarily because that court relied upon regulations pertaining to intermittent and reduced leave.
The Federal Register’s preamble and the U.S. Department of Labor’s official interpretation of the FMLA statute, the Murphy judge said, were immaterial to Murphy because JCT granted leave to Murphy based on 29 U.S.C. §2612(a)(1). That is, Murphy received unpaid medical leave because of a serious health condition that made him unable to perform the functions of his position.
The court in Truitt found that Congress had not “directly spoken to the precise question of how to calculate FMLA leave entitlement for a rotational employee,” and thus FMLA was ambiguous or silent regarding the issue at hand.
The judge in Murphy said that he reached his summary after he reluctantly concluded that the legislature’s choice of language about counting workweeks must have been deliberate.
“Section 2612(a)(1) and its implementing regulation, 29 C.F.R. § 825.200, reference ‘workweeks,’ but make no mention of ‘the amount of leave actually taken’ or ‘the actual workweek’,” the court opined. “If Congress had intended to restrict the employer’s application of FMLA leave time … to only those weeks during which rotational employees would actually be on duty, it would have included language similar to [the regulations pertaining to intermittent and reduced leave]. It did not do so.”
Bottom Line Compliance
According to the Murphy decision, the “actual workweek” language in one section of FMLA law (as it pertains to general entitlement leave) is not applicable to the other section that refers specifically to intermittent and reduced leave.
The FMLA statute does not explain how to measure a 12-month period for FMLA leave, but DOL regulations do. To count weeks, employers have four options to follow:
- the calendar year;
- any fixed 12-month leave year, such as a fiscal year, one required by state law, or one starting on the employee’s anniversary date;
- the 12-month period measured forward from the date the employee first takes FMLA leave; or
- a rolling 12-month period measured backward from the date the employee uses any FMLA leave.
For additional information about the FMLA and termination, see Thompson’s employment law library including the Family and Medical Leave Handbook.