Phone: 630-495-2282 Fax: 630-495-2260 Map/Directions

Count holidays as part of FMLA leave: appellate court

November 22, 2010
Holidays are to be counted against intermittent leave that extends one week or more under the Family and Medical Leave Act, a federal appeals court upheld recently in the case of a former Boston University employee against the university.

Linda Mellen, who after 26 years had ascended to BU's financial manager for the School of Public Health, applied in writing for leave to care for her ailing mother. She requested to be out Aug. 4-Oct. 3, 2003; and again, if necessary, Oct. 28-Nov. 18. The gap encompassed 15 vacation days Mellen had already been granted.

The BU personnel director approved Mellen's leave request, but said if she failed to return to work Nov. 19, she would be considered to have resigned voluntarily.

But Mellen argued that since her leave was intermittent, only the days she actually missed from work, and not holidays, should be counted. Mellen said she would extend her leave to Nov. 20 in light of the university's Nov. 17 internal holiday.

A federal district court in 2005 ruled that Mellen's FMLA leave had been properly calculated because holidays that fell within her leave period were properly calculated against it.

The court also determined that even if BU had improperly calculated her leave, Mellen needed prior approval for intermittent leave and should have requested additional days off rather than not report to work on Nov. 19.

A federal appeals court this autumn upheld the judgment for BU in the case, Mellen v. Trustees of Boston University.

The case represents the first published opinion on the consequences employees face when taking intermittent leave under the FMLA, where at least one of the weeks taken includes a holiday.