When an employee works a “rotational” schedule—typically weeks “on” followed by weeks “off”—do the “off” weeks count when calculating FMLA leave? An Oklahoma federal court held that an employer did not violate the FMLA by counting scheduled weeks off as FMLA leave. Murphy v. John Christner Trucking (D. Ok. Aug. 15, 2012). In 2010, an Alaska federal court reached the opposite conclusion. Truitt v. Doyon Drilling (D.Alaska 2010)

In Murphy, the plaintiff worked seven days on, seven days off. When “on,” he worked 84 hours weekly. To calculate his FMLA entitlement, the employer averaged his weekly work time and then applied that time to both weeks “on” and weeks “off.” In upholding the employer’s approach, the court said that while the FMLA and the DOL’s regulations concerning intermittent and reduced schedule leave restrict employers from applying FMLA leave time to periods when the employee would ordinarily not be scheduled to work, neither the statute nor regulations have similar language for other types of FMLA leave, such as leave taken in a block of time.

In Truitt, the plaintiff worked two weeks on, two weeks off. The court said that language in the preamble of the DOL’s FMLA regulations suggested that an employer cannot consider weeks an employee would ordinarily have been scheduled “off” to be FMLA leave.

In 2012, the DOL sued an energy services company in Alaska concerning the calculation of FMLA leave for an employee on a rotational schedule. The DOL asserted “that weeks that a rotational employee is not scheduled to work cannot be counted as leave.”