Rotational Employees Are Not Afforded More FMLA Leave Than Traditional Employees

Good news from the Ninth Circuit Court of Appeals for employers in the maritime industry and other employers who utilize rotational schedules for employees. When calculating FMLA continuous leave, the Department of Labor (DOL) has long applied the definition of “workweek” to mean a week that an employee actually worked or would have worked, had he or she not been on FMLA leave. This resulted in weeks a rotational employee would have been off not being counted in the employee’s allotted twelve weeks of leave. DOL’s interpretation resulted in rotational employees being afforded more than twelve weeks of continuous leave per year in certain circumstances.

Traditional Employees Versus Rotational Employees

A traditional employee is one that works a regular schedule of forty hours per week. This usually means five days on then two days off. A rotational employee generally works a solid block of time followed by a solid block of time off. For example, one week on then one week off. The situation is the same for a rotational employee who works a different combination of that pattern such as two weeks on then two weeks off or a month on followed by a month off.

What is a Workweek Under FMLA?

DOL had long defined a “workweek” as a week a specific individual employee worked. Under this interpretation, a rotational employee working one week on then one week off would have twenty-four weeks of continuous leave because only the weeks worked would count towards the twelve weeks.

The Ninth Circuit disagreed with this interpretation and clarified the definition of “workweek” in Scalia v. State of Alaska. The Scalia court clarified that a “workweek” does not revolve around an individual employee’s own work schedule. Rather, it is “simply a week-long period, designated in advance by the employer, during which the employer is in operation.” Note that this decision only applies to western states and territories covered by the Ninth Circuit.

Employers of Rotational Employees Are No Longer Required to Provide More Than Twelve Weeks of Leave.

Prior to the Scalia decision, an employer of a rotational employee who worked, say, two weeks on then two weeks off could be required to provide twenty-four weeks of continuous leave per year. This meant the employer of a rotational employee had to pay the employee’s benefits for twice as long as a traditional employee and was required to hold the rotational employee’s position for twice as long as that of a traditional employee.

In practice, this means that traditional and rotational employees are entitled to the same twelve weeks of continuous leave per year. An employer of a rotational employee need only pay for twelve weeks of the employee’s benefits and hold the rotational employee’s position for no longer than twelve weeks.

The Scalia decision provides a fairer approach for employers of rotational employees and also for traditional employees. The employer of rotational employees no longer has to bear twice the burden of the employer of traditional employees. Also, traditional employees now receive equal leave benefits as their rotational counterparts.

Scalia v. State of Alaska Does Not Affect Intermittent Leave

The Ninth Circuit’s decision was focused on continuous leave for rotational employees. It did not change how intermittent leave is calculated or utilized for either traditional or rotational employees. Employers who have questions about FMLA leave should contact an employment law attorney to review the policies and plans being considered. The attorneys at Davis Grimm Payne & Marra are experienced with the FMLA. We can be reached at (206) 447-0182. Please do not hesitate to reach out. We would be glad to help your company.

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