When Can Twelve Turn into Twenty-Four? Calculation of FMLA Leave for Vessel-Based Employees

The Family and Medical Leave Act (“FMLA”) ensures an employee the ability to take leave and return to work within twelve “workweeks” of a qualifying event. Employers that do not honor the protections of the FMLA risk a lawsuit from the employee or the Department of Labor seeking damages. The damages can include back pay, front pay, lost benefits, liquidated damages, reasonable costs for care of a family member, equitable relief, reinstatement and promotion (if otherwise entitled), attorneys’ fees, and other court costs. Despite its mountain of regulations, and over twenty years on the books, some questions remain unanswered.

For instance, the FMLA and its regulations vaguely provide for twelve “workweeks” of leave, but they do not provide any guidance on how to calculate that leave for employees on scheduled hitches in the marine industry. And, a survey of the jurisprudence on this issue only identifies two cases that have addressed the issue.

In Truitt v. Doyon Drilling, Inc., 764 F. Supp. 1167 (D. Alaska 2010), an employee challenged the employer’s use of twelve calendar weeks of FMLA leave when the employee worked a two week on, two week off rotational schedule. The court held that the use of calendar weeks for calculating FMLA leave in this situation violated the FMLA. The court, while acknowledging that the regulations do not speak to this specific issue, found that the preamble to the FMLA provides that “[a]n employee’s FMLA leave entitlement may only be reduced for time which the employee would otherwise be required to report for duty, but for the taking of the leave. If the employee is not scheduled to report for work, the time period involved may not be counted as FMLA leave.” 764 F. Supp. at 1169-70. Thus, the court held that the employer could only deduct the workweeks that the employee was scheduled to report for duty but was unable to do so because of his qualifying FMLA condition. Id. at 1171. More recently, a district court reached the opposite conclusion and criticized Truitt in doing so.

In Murphy v. John Christner Trucking, LLC, 2012 WL 3428072 (N.D. Okl. 8/15/12), an employee’s schedule was fixed at seven days on, seven days off, Monday through Sunday. After the employee went on leave, the employer calculated the leave using a formula that resulted in, essentially, twelve calendar weeks of leave. The Murphy court concluded that the employer’s calculation was correct, disagreeing with Truitt’s reasoning.

Specifically, the Murphy court found that Truitt improperly relied upon regulations related to intermittent or reduced leave, as opposed to regular leave time. The court also applied the plain language of the FMLA and noted that “if Congress intended to restrict an employer’s application of FMLA leave under § 2612(a)(1) [the section authorizing leave] to only those weeks during which rotational employees would actually be on duty, it would have included language similar to § 2612(b) [the section on intermittent leave]. It did not do so.” The court also noted that the concepts behind extending FMLA protection beyond twelve calendar weeks apply to intermittent leave because of the leave being taken, but that when an employee is on regular leave, the employer is required to leave the job open (whether or not the employee is actually working) for the full amount of leave. To require the employer to do so beyond twelve calendar weeks is not required. Therefore, the court concluded that the employer’s calculation of leave was accurate.

Then, on May 16, 2013, relying on the reasoning in Truitt, the Seattle District Office of the DOL initiated an enforcement action against another Alaska-based oil and gas support company that utilized rotational schedules. The employer settled the case by reinstating the employee, paying back wages, and revising its policies.

Of course, using twelve calendar weeks as in Murphy is more reasonable, and it is certainly consistent with the policy reasons behind the FMLA and the leave policy in place at many employers. However, with no authority in the circuit courts and only limited support in the district courts, it would be difficult to predict exactly how a court would rule on it. The stronger, practical argument is the one in favor of the Murphy analysis which allows for a calendar week calculation, but employers should be aware of this issue.

The FMLA has done a lot of good, and its goals are worthy. But, it would also benefit it from a practical approach to industries, such as the marine industry, who may need their employees at a moment’s notice, even when generally scheduled to work a hitch. Otherwise, views such as those in Truitt and taken by the DOL in its recent enforcement notice could compel an employer to leave a position open (and maintain costly benefits) for twenty-four weeks, instead of the twelve originally contemplated by Congress. In response, employers can tighten up policies to try and demonstrate that a calendar approach for that employer is appropriate.