Employer May Count All Weeks To Determine FMLA Leave Entitlement For Employees Working “One Week On, One Week Off” Schedules

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Feb 25, 2021

The Alaska Marine Highway System (AMHS) employs “traditional” employees who work a regular 40-hour week with five days on followed by two days off, and “rotational” employees who work a regular schedule of seven days on followed by seven days off.  Both types of employees generally work the same number of hours over the course of a year, and both are generally paid the same amount.

The Secretary of Labor alleged that AMHS was improperly calculating the Family and Medical Leave Act of (FMLA) leave for certain rotational employees, specifically rotational employees who took continuous FMLA leave.  The FMLA grants eligible employees “a total of 12 workweeks of leave during any 12-month period” to attend to qualifying family and medical needs.  FMLA leave may be either continuous (i.e., leave taken in one block of time) or intermittent (i.e., leave taken in increments).  Continuous leave is the default form of FMLA leave.

Under the Secretary of Labor’s view, rotational employees taking continuous leave should return to work 24 weeks later, because a rotational employee’s off weeks cannot be counted as “workweeks of leave.”  However, AMHS contended that a rotational employee working a “one week on, one week off” schedule who takes 12 workweeks of continuous leave must return to work 12 weeks later because both the “on” and “off” weeks count against the employee’s FMLA leave entitlement.  The district court agreed with the Secretary of Labor and entered judgment against AMHS.  AMHS appealed.

On appeal, the Ninth Circuit noted that this case turned on what the term “workweek” meant.  While Congress did not define “workweek” when it enacted the FMLA, it used the same term in the Fair Labor Standards Act (FLSA).  Under the FLSA, employers are prohibited from employing any covered employee “for a workweek longer than forty hours unless such employee receives compensation for his employment . . . at a rate not less than one and one-half times the regular rate at which he is employed.”  Additionally, FMLA’s regulations construed the term “workweek” to mean a fixed period of seven days.  Further, the Court reasoned that the FMLA’s purpose and legislative history bolster the conclusion that Congress rejected the Secretary of Labor’s narrow interpretation of the term “workweek.” Therefore, the Ninth Circuit concluded that Congress intended “workweek” to refer to a week-long period, designated in advance by the employer, during which the employer is in operation.

While the Secretary of Labor argued his interpretation of the FMLA was entitled to deference, the court disagreed.  Accordingly, when an employee working a “one week on, one week off” schedule takes continuous leave, an employer may count both the on and off weeks against the employee’s FMLA leave entitlement. AMHS’s method of calculating leave did not violate the statute.

Scalia v. Dep’t of Transportation & Pub. Facilities, 2021 WL 139738 (9th Cir. Jan. 15, 2021).


Public agencies should ensure employees working alternate schedules are receiving the appropriate FMLA leave entitlement.  LCW attorneys can assist agencies in evaluating FMLA compliance.

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