When Can Twelve Turn into Twenty-Four? Calculation of FMLA Leave for Vessel-Based Employees

by Baker Donelson

The Family and Medical Leave Act (“FMLA”) ensures an employee the ability to take leave and return to work within twelve “workweeks” of a qualifying event. Employers that do not honor the protections of the FMLA risk a lawsuit from the employee or the Department of Labor seeking damages. The damages can include back pay, front pay, lost benefits, liquidated damages, reasonable costs for care of a family member, equitable relief, reinstatement and promotion (if otherwise entitled), attorneys’ fees, and other court costs. Despite its mountain of regulations, and over twenty years on the books, some questions remain unanswered.

For instance, the FMLA and its regulations vaguely provide for twelve “workweeks” of leave, but they do not provide any guidance on how to calculate that leave for employees on scheduled hitches in the marine industry. And, a survey of the jurisprudence on this issue only identifies two cases that have addressed the issue.

In Truitt v. Doyon Drilling, Inc., 764 F. Supp. 1167 (D. Alaska 2010), an employee challenged the employer’s use of twelve calendar weeks of FMLA leave when the employee worked a two week on, two week off rotational schedule. The court held that the use of calendar weeks for calculating FMLA leave in this situation violated the FMLA. The court, while acknowledging that the regulations do not speak to this specific issue, found that the preamble to the FMLA provides that “[a]n employee’s FMLA leave entitlement may only be reduced for time which the employee would otherwise be required to report for duty, but for the taking of the leave. If the employee is not scheduled to report for work, the time period involved may not be counted as FMLA leave.” 764 F. Supp. at 1169-70. Thus, the court held that the employer could only deduct the workweeks that the employee was scheduled to report for duty but was unable to do so because of his qualifying FMLA condition. Id. at 1171. More recently, a district court reached the opposite conclusion and criticized Truitt in doing so.

In Murphy v. John Christner Trucking, LLC, 2012 WL 3428072 (N.D. Okl. 8/15/12), an employee’s schedule was fixed at seven days on, seven days off, Monday through Sunday. After the employee went on leave, the employer calculated the leave using a formula that resulted in, essentially, twelve calendar weeks of leave. The Murphy court concluded that the employer’s calculation was correct, disagreeing with Truitt’s reasoning.

Specifically, the Murphy court found that Truitt improperly relied upon regulations related to intermittent or reduced leave, as opposed to regular leave time. The court also applied the plain language of the FMLA and noted that “if Congress intended to restrict an employer’s application of FMLA leave under § 2612(a)(1) [the section authorizing leave] to only those weeks during which rotational employees would actually be on duty, it would have included language similar to § 2612(b) [the section on intermittent leave]. It did not do so.” The court also noted that the concepts behind extending FMLA protection beyond twelve calendar weeks apply to intermittent leave because of the leave being taken, but that when an employee is on regular leave, the employer is required to leave the job open (whether or not the employee is actually working) for the full amount of leave. To require the employer to do so beyond twelve calendar weeks is not required. Therefore, the court concluded that the employer’s calculation of leave was accurate.

Then, on May 16, 2013, relying on the reasoning in Truitt, the Seattle District Office of the DOL initiated an enforcement action against another Alaska-based oil and gas support company that utilized rotational schedules. The employer settled the case by reinstating the employee, paying back wages, and revising its policies.

Of course, using twelve calendar weeks as in Murphy is more reasonable, and it is certainly consistent with the policy reasons behind the FMLA and the leave policy in place at many employers. However, with no authority in the circuit courts and only limited support in the district courts, it would be difficult to predict exactly how a court would rule on it. The stronger, practical argument is the one in favor of the Murphy analysis which allows for a calendar week calculation, but employers should be aware of this issue.

The FMLA has done a lot of good, and its goals are worthy. But, it would also benefit it from a practical approach to industries, such as the marine industry, who may need their employees at a moment’s notice, even when generally scheduled to work a hitch. Otherwise, views such as those in Truitt and taken by the DOL in its recent enforcement notice could compel an employer to leave a position open (and maintain costly benefits) for twenty-four weeks, instead of the twelve originally contemplated by Congress. In response, employers can tighten up policies to try and demonstrate that a calendar approach for that employer is appropriate.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.