What is a FLSA (Fair Labor Standards Act) workweek and why does it matter to FMLA (Family Medical Leave Act)?

A FLSA workweek is a fixed, regularly recurring period of 168 hours. It is seven, consecutive, 24-hour periods that an employer can adopt to maintain FLSA compliance.

So why does this matter to FMLA?

In recent case law, Scalia v. State of Alaska, No. 19-35824 (9th Cir. 2021), the Ninth Circuit held that a workweek under FMLA is the employer’s FLSA workweek and not the employee’s work schedule.

It was upheld in the case that if an employee works a rotational schedule of 1 week on and 1 week off and they take leave consecutively/ continuously for 2 weeks, both weeks would count towards the 12 weeks of FMLA leave the employee has. Designation is its own step, and an employment attorney walks through it in this FMLA advice for employers.

What this means for Employers?

Overall, this case provides clarity for employers on how to calculate FMLA leave entitlement for employees with varying work schedules. Even if an employer does not use “rotational” work schedules the employer should use their designated FLSA 7-day workweek (Sunday through Saturday, Monday through Sunday), when determining an employee’s FMLA leave usage towards 12 weeks of FMLA leave. Accurate counts start with clean records, so keep current DOL FMLA forms on file for every leave. Rotating and irregular schedules are exactly where automated FMLA leave counting saves HR from manual math.