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Eighth Circuit Says Employers Can Count Weeks an Employee is Not Scheduled to Work in Determining the 12-week FMLA leave entitlement – Las Vegas Employment Attorney Andre Lagomarsino

The Eighth Circuit U.S. Court of Appeals dismissed a claim for interference under the Family and Medical Leave Act (the FMLA) by a “rotational” worker who was terminated after exhausting 12 weeks of leave, even though the employee was not otherwise scheduled to work during half of those weeks. Murphy v. John Christner Trucking, LLC, 2012 WL 3428872 (N.D. Okla. August 15, 2012).

Randy Murphy was a nighttime extended coverage dispatcher and dispatcher supervisor for John Christner Trucking from 1998 until the end of 2010. In September 2010, when Murphy was diagnosed with deep vein thrombosis and then underwent an angioplasty, he requested and used FMLA time off. Murphy took his initial FMLA medical leave for the venogram and angioplasty beginning on September 20, 2010. After being released by his doctor, Murphy returned to work on October 4, 2010. On October 25, 2010, Murphy went out again on FMLA leave. He never returned to work after that date. On December 25, 2010, John Christner terminated Murphy’s employment on the grounds that he had exhausted his FMLA leave. Murphy sued John Christner claiming, among other things, the trucking company unlawfully interfered with leave under the FMLA.

Murphy worked seven days on, seven days off, Monday through Sunday, and 84 hours a week. Under John Christner’s employee handbook, “employees eligible for FMLA leave are entitled to up to 12 weeks of job protected FMLA leave per year … if an employee fails to return to work from FMLA leave or fails to request an extension of the FMLA leave, the employee may be considered to have abandoned his or her job and it may be considered a voluntary termination of employment.”

John Christner calculated Murphy’s FMLA leave as follows: 12 hours per day times seven days per week equals 84 hours per week divided by two for an average of 42 hours per week; 42 hours per week times 12 weeks equals 504 hours. Applying the FMLA leave time to weeks Murphy would ordinarily have been scheduled to be off work, John Christner calculated that Murphy’s FMLA leave would expire on December 26, 2010. John Christner then sent a letter to Murphy, dated December 22, 2010, that stated:

Your Family Medical Leave of Absence is scheduled to end on December 25, 2010. (a typo mistake)

In accordance with our FMLA policy and as is permitted by FMLA regulation, we require all employees on leave to provide notice of their intent to return to work. This notice was mailed to you on October 28, 2010 along with your rights and responsibilities.

Because you are unable to return to work at the end of your FMLA leave, your absence isn’t covered under protections.

Murphy’s doctor did not release him to return to work until December 28, 2010.

According to the Eighth Circuit, the FMLA allows qualified employees to take up to 12 weeks of leave during a 12 month period if “a serious health condition … makes the employee unable to perform the functions of the position of such employee.” Under the FMLA, it is unlawful “for any employer to interfere with, restrain, or deny the exercise of” rights provided by the FMLA. A prima facie claim for FLMA interference requires a showing that 1) the employee was entitled to FMLA leave; 2) some adverse action by the employer interfered with the employee’s right to take FMLA leave; and 3) the employer’s action was related to the exercise or attempted exercise of the employee’s FMLA rights. A denial, interference or restraint of FMLA rights is a violation regardless of the employer’s intent.

The first requirement was not in dispute. The second and third requirements required an analysis of whether John Christner was correct in applying Murphy’s FMLA leave to weeks he wasn’t required to work.

29 U.S.C. § 2612(a)(1) states that “an eligible employee’s FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12 month period.” In contrast, Section 2612(b) of the FMLA states, “The taking of leave intermittently or on a reduced leave schedule pursuant to this paragraph shall not result in a reduction in the total amount of leave to which the employee is entitled under subsection (a) beyond the amount of leave actually taken.” (emphasis added). Implementing regulations related to § 2612(b) restrict employers from applying FMLA leave time to periods of time when the employee would ordinarily not be scheduled to work. However, said the Court, “If Congress had intended to restrict the employer’s application of FMLA leave time under § 2612(a)(1) to only those weeks during which rotational employees would actually be on duty, it would have included language similar to § 2612(b). It did not do so.”

John Christner’s calculation and application of Murphy’s leave time to weeks when Murphy was not scheduled to work did not violate the FMLA.

The Las Vegas law office of Lagomarsino Law did not represent anyone involved in any cases that may be referenced above. This commentary is for educational purposes. If you would like to be represented by an attorney in our Las Vegas office, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.