SW Legal studies in Business

Vacation Days that Occur During FMLA Leave Are Part of the Leave

Appeals court held that an employee did not have the right to extend FMLA leave by adding vacation days on to mandated FMLA leave. Ordinary vacation days that occur during FMLA leave are part of the leave and are not saved for later.

Topic Employment Law
Key Words Family and Medical Leave Act; Rights
C A S E   S U M M A R Y

Mellen worked at Boston University (BU). She was frequently in conflict with her supervisor, Drolette. In July, Mellen applied for leave under the Family and Medical Leave Act (FMLA) so she could care for her ailing mother from August 4 to October 3. From October 4 to October 28, she would take vacation time, and then more FMLA leave from October 28 to November 18. The head of personnel approved the leave and, in a letter, noted that if Mellen did not return on November 19, she would be considered to have resigned. In October, Mellen told Drolette she would extend her leave through November 20 since the university declared November 17 to be a holiday. In response, Drolette said she could not extend her leave and must be back on the 19th. On the 19th, Mellen mailed a letter, not received until later, that she was afraid to return to work due to Drolette’s “threatening” letter telling her she must return by the 19th. On the 20th, Drolette send Mellen a letter that her failure to return was a resignation. Mellen sued, claiming BU interfered with her FMLA rights. The district court granted summary judgment for BU. Mellen appealed.


Affirmed. BU provided Mellen her full duration of leave required by FMLA. When one takes FMLA leave, holidays are calculated against intermittent leave taken in intervals of one week or more. Mellen took intermittent leave since she took FMLA leave in two blocks of time, each of more than a week. Under FMLA regulations, holidays that occur during such leave periods are part of the leave; they cannot be tacked on as extra days. Since the terms of employment stated that if Mellen did not return on the 19th she would be considered to have resigned, and there was no word from her on the 19th when she did not appear, she had resigned.

Citation Mellen v. Trustees of Boston Univ., 504 F.3d 21 (1st Cir., 2007)

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