Rotational Employee Unsuccessful on FMLA Interference Claim Based upon Leave Calculations

Where employees do not work traditional work schedules, calculating leave under the Family and Medical Leave Act (FMLA) can be tricky.  

In this recent case out of the Northern District of Oklahoma, the employee suffered from a serious medical condition and requested, and was granted, 12-weeks of FMLA leave. His position required that he work a rotational schedule of seven 12-hour days for one week, followed by seven days (or one week) off thereafter. The employee took an initial leave from September 20, 2010, to October 4, 2010, and a second leave starting on October 25, 2010. The employer calculated that the total 12-week leave would end on December 26, 2010, and when the employee was not cleared to return to work, terminated him that day. The employee disagreed, arguing that as of December 26, 2010, he would have only used 6 weeks of leave, given his one week on/one week off work schedule. The employee brought a FMLA interference action and argued that his leave should have been calculated under statutory and regulatory rules on intermittent leave, which bases leave on the actual hours the employee was scheduled to work, not limiting it workweeks regardless of the employee’s schedule. (See 29 U.S.C. §2612(b) & 29 C.F.R. §825.205 & 601). As this was not an intermittent leave case, the employee was restricted to Section 2612(a) that states that an eligible employee’s entitlement is “limited to a total of 12 workweeks of leave during any 12-month period.” As a matter of statutory construction, the court held that the employer’s calculations were proper, that the 12-week period ended as of December 26, 2010, and thus there was no interference with the employee’s FMLA rights.

In reaching its holding, the court noted that there was only one other reported case on this point, a district court case out of Alaska, which relied on the intermittent leave provisions to uphold an interference claim in similar circumstances. The Oklahoma court, however, rejected this decision, finding it improper to rely upon inapplicable intermittent leave provisions.

Given the dearth of case law on this issue, employers calculating FMLA leave for rotational employees should exercise caution in ensuring that leave is accurately calculated and provided to employees. For more information read about Murphy v. John Christner Trucking LLC.