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Employment Law Alert: First Circuit Says That Employer Properly Counted Holidays Against Employee’s Available FMLA Time

On September 21, the First Circuit Court of Appeals issued a decision in which it held -- as a matter of first impression among the circuits -- that Boston University acted properly when it counted three holidays against an employee’s available intermittent leave time under the FMLA. The employee, relying on 29 C.F.R. § 825.205(a), argued that the three holidays that fell during her leave period should not have been counted against her total leave entitlement. That DOL regulation provides that “[i]f an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled.” However, the Court said that when the intermittent leave is taken in a block of time of a week or more, holidays falling within that week may properly be counted against the employee’s total FMLA leave entitlement. In support of its determination, the Court noted another DOL regulation -- 29 C.F.R. § 825.200(f) -- which states that “[f]or purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.”


Bottom Line

This is obviously a good decision for employers, because it addresses a specific issue pertaining to intermittent leave under the FMLA not previously considered by any other circuit court.



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