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Employees who take sudden leaves of absence for long periods of time under the Family and Medical Leave Act can expect to lose their paid holidays that fall during that period, a federal court has ruled. The 1st U.S. Circuit Court of Appeals recently held that paid holidays that fall during intermittent FMLA leave taken for a week or more at a time will be counted as FMLA leave. Mellen v. Boston University, No. 07-1151. The case involved a Boston University employee who requested 12 weeks off, in two blocks of time, to care for her ailing mother. Three paid holidays fell during that time period, which the university counted as FMLA leave. The 1st Circuit said the university was justified in doing so, citing a federal regulation that states: “[f]or 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.” “This is good for employers in that they don’t need to worry about miscalculating FMLA leaves, at least in so far as they’re focusing on leaves of full-week increments,” said Frank Alvarez, a labor and employment attorney in Jackson Lewis’ White Plains, N.Y., office, noting that intermittent FMLA leave is “the biggest source of friction” for employers. “Employers are constantly trying to figure out how much more job-protected leave do employees have,” Alvarez said. “This [ruling] is an example of where the courts have given a little more guidance to clear up some of that confusion.” Confusion remains But FMLA confusion remains, Alvarez added, noting that the 1st Circuit did not address a more complicated question: What happens to paid holidays when an employee takes intermittent leave of less than a week? For example, if an employee takes off a Friday, a holiday falls on a Monday, and then takes off Tuesday, would the paid holiday be considered FMLA leave? Most likely not, said employee rights attorney Gary Reeve of Kennedy, Reeve & Knoll in Columbus, Ohio, who called the 1st Circuit ruling a “an extremely limited employer win. “Defendants and employers ought to be on guard not to think they can run with [the ruling] too far,” Reeve said. “I don’t think it can be used as some might think.” For example, Reeve said, employees who take two days of intermittent FMLA leave � with a paid holiday in between � can argue that had the workplace been open on the holiday, they would have been there. But it wasn’t, so they weren’t. “There I think the intermittent-leave rule would apply, and the holiday would not be counted,” said Reeve, who lectures throughout the Midwest on the FMLA. “I think the facts of this case are very stark and very obvious. This person was taking large blocks of leave. This really wasn’t intermittent leave.” Labor Department rule But Harry C. Beach, who represented the plaintiff in the 1st Circuit case, believes that his client, Linda Mellen, was wrongfully deprived of paid holiday time owed to her. He cited a U.S. Department of Labor regulation that states, “[I]f an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled.” He also cited Massachusetts’ Small Necessities Leave Act, which provides for 24 hours of leave annually for employees who need it, and requires seven days’ notice. According to Beach, the university told Mellen she had to return to work on Nov. 19. She asked for an extra day because Nov. 17 was a university holiday, but was denied it. Mellen never returned to work but sued, arguing her paid holidays were wrongfully taken from her. Boston University lawyers Crystal D.Talley and Lawrence S. Elswit did not return calls seeking comment.

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