In a case of first impression, the First Circuit sustained 29 CFR 825.220(f), which provides that a work holiday occurring during an employee's absence on FMLA leave counts against the employee's 12-week FMLA leave entitlement.
In Mellen v. Trustees of Boston University, No. 07-1151, 2007 U.S. LEXIS 22518 (1st Cir. Sept. 21, 2005), the employee argued that she did not receive her full 12-week FMLA leave entitlement because BU counted 3 holidays that occurred during her use of intermittent FMLA leave. With the three days, Mellen would have had sufficient leave to cover her absence until she returned to work.
Mellen argued that, since her leave was intermittent, only the days she actually missed from work, and not holidays, should be counted. 29 CFR 825.205(a)("If 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"). Mellen argued that, since she would not have worked the holidays, she did not "actually take" FMLA leave on those days and, therefore, those days should not count.
BU countered by citing 29 CFR 825.200(f), which provides that in calculating the amount of FMLA leave taken, holidays occurring within a week taken as FMLA leave have no effect.
The court agreed with BU. The court found that 825.205(a) and 825.200(f) are not in conflict, but work together. The requirement in 825.205(a) that the "amount of leave actually taken" is the "amount of leave used" as defined in section 825.200(f), the court found. Again, 825.200(f) counts a holiday that occurs during an FMLA leave absence against the employee's 12-week FMLA leave entitlement. The court rejected the employee's contention that such a construction rendered 825.205(a) meaningless. The court explained:
As the examples in the regulation demonstrate, the provision's purpose is to ensure that an employer does not claim that an employee who takes off one day during a five-day work week has taken off the entire week, or that an employee who works half days under a reduced leave schedule has taken off more than half a day. Its purpose is not to give an advantage to an employee who takes off five weeks but designates it intermittent leave over an employee who takes off five weeks as continuous FMLA leave.
Comment: The decision effectively sustains the validity of 825.200(f) no matter whether FMLA leave is taken in a single block of time, intermittently, or on a reduced leave schedule.
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