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​The Alaska Marine Highway System (AMHS) cannot calculation as allotment of a rotational employee’s Family and Medical Leave Act (FMLA) leave those weeks that the agent is not appointed to work, a federal commune cloister held.



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AMHS is a accompaniment bureau that employs workers on its ferries to carriage cartage forth the coasts of Alaska. AMHS schedules some barge advisers on a rotational basis, acceptation they assignment for one or added weeks followed by one or added weeks off. Back these advisers accept austere medical conditions, the catechism arises as to whether they charge booty weeks of FMLA leave consecutively or can use that leave for alone the weeks in which they are appointed to work. The closing estimation would extend rotational employees’ FMLA leave to aftermost added than 12 agenda weeks at a time.

AMHS interpreted the act as acute it to accommodate alone 12 after weeks of leave, whether the rotational advisers are appointed to assignment throughout the weeks or not. In response, the U.S. Department of Labor (DOL) sued AMHS beneath the FMLA, gluttonous injunctive abatement to anticipate AMHS from artful FMLA for rotational advisers as after blocks of weeks, and budgetary amercement and added abatement on account of any rotational advisers afflicted by the defendant’s calculations.

AMHS confused to abolish the DOL’s complaint for abortion to accompaniment a believable affirmation because the DOL’s estimation of the FMLA 12-week leave alms as it applies to rotational advisers was not reasonable. The cloister disagreed and accustomed the affirmation to advance as based on a reasonable estimation of the FMLA.



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After this ruling, the DOL approved fractional arbitrary acumen to aphorism that the AMHS convenance of artful FMLA leave for rotational advisers violates the act. The DOL additionally approved a abiding admonition barring AMHS from continuing to breach the FMLA. AMHS filed a cross-motion for arbitrary acumen arguing that its calculations of FMLA leave for rotational advisers do not breach the act.

The cloister acclaimed that the act itself provides that an acceptable agent is advantaged to “12 workweeks” of FMLA leave anniversary year. Thus, to accept the AMHS estimation of the FMLA as accouterment after blocks of leave for a rotational agent of up to 12 weeks a year would about alter the alms to “12 workweeks” of leave beneath the act with alone “12 weeks” of leave for an acceptable employee.

[SHRM members-only toolkit: Managing Family and Medical Leave]

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The cloister additionally bent that the DOL’s regulations interpreting the FMLA were advantaged to administrative deference. The DOL regulations abode the bearings of FMLA leave alms back an employer’s business action has briefly ceased, and advisers are not accepted to address for assignment for one or added weeks, such as back a academy is bankrupt for the winter holidays or during summer vacation. According to the regulations, for these employers, the canicule in which the business activities accept accomplished do not calculation adjoin the employee’s FMLA leave entitlement.

AMHS argued, however, that the closing of a business during a leave aeon differs from the bearings of a rotational agent not appointed for assignment during one or added agenda weeks. Rotational advisers on FMLA leave during a nonscheduled anniversary are absent from assignment while the employer’s operations are still occurring, and this absence from the rotational agent basin affects scheduling and costs during that week.

AMHS added argued that the DOL’s estimation would advance to complication and alternation beneath the leave acceding of the AMHS aggregate acceding acceding with its employees, as able-bodied as diff analysis of analogously anchored employees.

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The cloister disagreed, award that rotational advisers not appointed to assignment were not missing but were not acceptable to assignment like advisers during a business closing. The cloister additionally begin that any complication created by the aggregate acceding acceding could not alibi AMHS for depriving rotational advisers of their FMLA rights. The cloister appropriately accepted fractional arbitrary acumen to the DOL, but aloof for added action the catechism of whether or not to admission a abiding admonition adjoin AMHS.

Acosta v. Accompaniment of Alaska, D. Alaska, No. 1:17-cv-0009-HRH (Nov. 6, 2018).

Professional Pointer: Artful FMLA leave can be abnormally circuitous for administration of melancholia or rotational employees, who may not be appointed to assignment for after workweeks. In these situations, administration should about err on the ancillary of attention in artful employees’ FMLA leave alms to abstain abeyant acknowledged claims.

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Jeffrey Rhodes is an advocate with Doumar Martin in Arlington, Va.

[Visit SHRM’s ability folio on the Family and Medical Leave Act.]

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