The FMLA was created to allow employees time off to deal with their own serious health conditions or those of family members who need medical care. But the law carefully balances the rights of employees to keep their jobs while facing temporary hardships with the rights of employers to run their businesses.
That’s one reason the U.S. Department of Labor’s (DOL) FMLA regulations provide employers with several options for calculating how much leave employees are entitled to at any given time.
Eligible employees can take up to 12 weeks of unpaid leave during a 12-month period. According to the U.S. Department of Labor’s FMLA Regulations (29 CFR § 825.200), employers are permitted to choose any one of the following methods for measuring the “12-month period” in which the 12 weeks of leave entitlement occurs:
(1) The calendar year. It’s the simplest method. Under the calendar method, eligible employees who have met the FMLA’s required 12 months of service and 1,250 hours of work are entitled to 12 unpaid weeks during any calendar year. The downside: This means someone could take 12 weeks of FMLA leave ending on Dec. 31 and then immediately be eligible for another 12 weeks staring on Jan. 1. This “stacking” of leave makes the calendar-year option unpopular.
(2) Any fixed 12-month “leave year,” such as a fiscal year or the employee’s “anniversary” date, or a year required by state law;
(3) The 12-month period measured forward from the date any employee’s first use of FMLA leave; or
(4) A “rolling” 12-month period measured backward from the date an employee first takes FMLA leave.
This rolling method is more complex, but also more popular. That’s because it allows employers to limit FMLA leave to a total of 12 weeks during the preceding 12 months. The rolling method would, for example, entitle someone who already had taken eight weeks in the last 12 months to just four more weeks. This method is more complicated because it requires a new calculation each time an employee requests FMLA leave. But it does prevent the possibility of someone taking 24 weeks of consecutive FMLA leave.
Which method should your organization select? That depends on how much record-keeping you want to do.
But one thing is certain: If you don’t select a method and let employees know, the DOL says you must use the method most beneficial to the employee. That may mean doing four calculations every time an employee wants FMLA leave. So choose a method and use it consistently.
Want to change your calendar method? The DOL says:
“An employer is also permitted to change to another alternative method so long as a 60-day notice is given to all employees, and the full benefit of 12 weeks of FMLA leave under whichever alternative method yields the greatest benefit during the 60-day transition period is retained by all employees. At the conclusion of the 60-day transition period, the employer may implement the new alternative method selected.” (29 CFR §825.200)
Note: Making things even more complicated, the Military Caregiver Leave regulations in 2009 entitle employees to up to 26 weeks of leave per service member, per injury, in a single 12-month period, beginning on the date the leave begins. This effectively creates a second “leave year” for employees to track, and it operates outside the standard leave year.
Allowable reasons for FMLA leave
Except in the case of leave to care for a covered servicemember with a serious injury or illness, U.S. Department of Labor regulations say an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:
1. The birth of the employee's son or daughter, and to care for the newborn child;
2. The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child;
3. To care for the employee's spouse, son, daughter or parent with a serious health condition;
4. Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job; and,
5. Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
