Recently, the First Circuit Court of Appeals held that if an employee takes intermittent leave for a period of a full week or more, and one (or more) of the weeks contains a holiday, the amount of FMLA leave used (i.e., counted against the employee’s entitlement) includes the holiday(s). Mellen v. Trustees of Boston University (September 21, 2007).

Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason such as periodic treatment by a health care provider for a serious health condition. There is no limit on the size of an increment of intermittent leave, although an employer may limit leave increments to the shortest period of time that the employer’s payroll system uses to account for absences or use of leave.

In Mellen, the plaintiff was approved for four weeks of intermittent FMLA leave from October 28 through November 18 to care for her ailing mother. Plaintiff was informed that if she did not return to work on November 19, she would be considered to have resigned voluntarily. The plaintiff did not return to work on November 19 nor call to request additional FMLA leave. Plaintiff’s employment was terminated as a voluntary resignation. Plaintiff then sued alleging that her employer miscalculated the amount of her FMLA leave entitlement. Plaintiff argued that the university was required to extend her intermittent FMLA leave by one day due to a university holiday that occurred during her last week of leave.

The Mellen case required the court to interpret and apply several regulations arguably at odds with one another. The plaintiff relied upon 29 C.F.R. Sec. 205(a), which provides that if an employee takes leave on an intermittent and/or reduced leave schedule, only the amount of leave actually taken may be counted towards the 12 weeks of leave to which an employee is entitled. In seeming contrast, 29 C.F.R. Sec. 825.200(f), relied upon by the university, states that for purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave.

The appeals court reconciled the two provisions and reasoned that if an employee’s intermittent leave includes a full, holiday-containing week, the amount of leave actually used or taken by the employee includes the holiday. The court stated that the intermittent leave provision was not intended to give an advantage to an employee who takes off multiple weeks designated as intermittent leave over an employee who takes off the same amount of time as continuous FMLA leave.

The Sixth Circuit Court of Appeals, which covers Ohio employers, has not issued a published opinion on this question, and the Mellen decision does not establish binding precedent for any federal district court within the jurisdiction of the Sixth Circuit. However, the Mellen decision appears to be well-reasoned and could be cited as authority in defense of a challenge to an Ohio employer’s decision to count a holiday-containing week as a full week of FMLA leave whether the week is taken as intermittent leave or continuous FMLA leave.

In summary, the Mellen court’s reasoning applies to intermittent leave taken in blocks of a week or more when one or more of the weeks contains a holiday. In such case, any week containing a holiday may be counted as a full week of FMLA leave, just as in the case of a week of continuous FMLA leave.