Calculate FMLA Leave for rotational schedules

If all employees had the same, traditional, M-F work schedule, FMLA administration might be easier. Not all employees, however, do have traditional schedules. Some, in fact work one week on, and the next week off. Even in these situations, employers need to know how to track their FMLA leave.

Case in point

The employer had some employees who worked a schedule of seven days on followed by seven days off – for a total of 80 hours one week and zero hours the next (a rotational schedule). In the employer’s view, a rotational employee who worked such a schedule and took 12 workweeks of continuous leave, had to return to work 12 weeks later because both the “on” and “off” weeks counted against the employee’s FMLA leave entitlement.

The U.S. Department of Labor (DOL) Secretary got wind of this and decided to step in and brought a suit against the employer. The Secretary argued that the employer was miscalculating the amount of FMLA leave that certain employees were entitled to take.

In the DOL’s view, the employee should return to work 24 weeks later, because a rotational employee’s off weeks cannot be counted as “workweeks of leave.” As the DOL puts it, only weeks in which an employee was otherwise scheduled to work can count as workweeks of leave, for “there is no work to take leave from when an employee is not scheduled to work.”

The DOL argued that Congress intended to adopt the definition of “workweek” from the Fair Labor Standards Act (FLSA) of a fixed period of seven consecutive days when it granted employees a total of 12 workweeks of FMLA leave.

The employer, on the other hand, argued in part that the workweek is a fixed, pre-established period of seven consecutive days in which the employer is operating. Under that reading of the term, when a rotational employee takes continuous leave, both his on and off weeks count as workweeks of leave.

The 9th Circuit ruled in favor of the employer, allowing employers to count both the on weeks and the off weeks of rotational employees as FMLA leave.

Key to remember: Employees with rotational schedules may have their off weeks counted as FMLA leave – at least in Alaska, Arizona, much of California, Guam, and Hawaii.

Eugene Scalia v. State of Alaska, 9th Circuit Court of Appeals, No. 19-35824, January 15, 2021