RE: Court Holds Employer’s FMLA Policy Too Ambiguous

To Our Clients and Friends: 

Recently, the United States Court of Appeals for the Ninth Circuit reviewed an employer’s Family Medical Leave policy under the federal law to determine if the policy provided employees with adequate notice as to how the employer calculates FMLA leave.  The Court found that the employer’s policy was ambiguous and therefore interpreted the policy in a manner more favorable to the employee.  Although the Ninth Circuit does not have jurisdiction over Maine and other Northeastern states, there is a risk that courts having such jurisdiction might agree with the notoriously liberal Ninth Circuit.

Under the federal law, an eligible employee is entitled to take up to twelve weeks of leave in any twelve month period.  The regulations permit the employer to choose how the twelve month period may be calculated.  The regulations permit an employer to calculate the twelve month period on a rolling twelve month basis, a calendar year basis, or any other fixed twelve month period.  If the employer fails to adequately designate the method of calculation, the employee is permitted to select the method that is most favorable to the employee.  Most employers select the rolling twelve month method because it literally restricts an employee to no more than twelve weeks of leave in any twelve month period.  The calendar year method (and the other methods) would permit an employee to take twelve weeks of leave at the end of one year and twelve weeks of leave at the beginning of the next year for up to twenty-four consecutive weeks of leave.

In the Ninth Circuit case, the Court held that the employer had failed to properly designate the method of calculation and therefore permitted the employee to pick the calendar year method which provided the employee with additional leave.  If your Company is subject to the federal Family Medical Leave Act, you should review your policy to determine whether it clearly designates the method of calculation.  To the extent you want to use the rolling twelve month method, the policy should specifically reference this method.  If you have any questions or would like our firm to assist you in updating the policy, please call either Peter Bennett or Rick Finberg.