FMLA and the “12-MONTH” Devil in the Details. Facts from Julie M. Young, Esq. (Buckingham, Doolittle & Burroughs)

The Family and Medical Leave Act (“FMLA”) ostensibly provides a straightforward employee benefit. However, for the uninformed employer, the “devil is in the details” of FMLA rights.The FMLA allows an eligible employee to take off from up to 12 weeks of unpaid medical leave in a 12-month period. To be eligible, the employee must be employed by his current employer for 12 months and have worked at least 1,250 hours during the preceding 12 months. An employee may use the leave for childbirth or adoption and subsequent care, or to attend to his own “serious health condition” or that of a spouse, child or parent.

A covered employer (50+ employees) must provide an explanation of FMLA rights in its written handbook. Failure to do so prevents the employer from taking action against an employee who fails to establish FMLA eligibility. Additionally, the handbook is the most logical place to clearly define discretionary FMLA procedure.

An employer, at its discretion, may require employees to exhaust acquired leave time, such as vacation or “sick” days, before taking unpaid FMLA leave. This requirement, however, must be outlined in writing prior to the commencement of the leave. An employer may provide the notice at the time an employee requests FMLA leave or preferably outline the requirement in the employee handbook.

Calculating the 12-Month Period

A wise employer will define the method for calculating the 12-month period. If the employer fails to do so, the employee may define the period in any way that is most advantageous to him.

There are four ways to calculate the leave period:

  • the calendar year (the period is renewed on January 1st of each year);
  • any fixed 12-month “leave year” (the fiscal year or anniversary of an employee’s hire date);
  • a 12-month period measured forward from the first day of FMLA leave; or
  • the rolling year.

Under the first three options, an employer may encounter the problem of “stacking.” In other words, an employee may stack two 12-week periods of leave back-to-back for a total absence of 24 weeks. For example, under the calendar year, an employee may use the last 12 weeks in one year and the first 12 weeks of the following year.To eliminate the stacking problem, an employer may choose the “rolling year.” Under this option, the 12-month period is measured backwards from the last day of FMLA leave. For example, if an employee uses six weeks of leave commencing June 1 and an additional six weeks of leave in November and December of the same year, on July 14 of the following year, the employee will be eligible for another six weeks of leave. In other words, when looking backwards 12 months from July 14, the first six weeks used will be outside the “lookback” period.

Although the details of FMLA leave may seem tedious, it is important for an employer to proactively define in writing those FMLA procedures over which it has discretion. Failure to do so may result in greater protected leave rights for eligible employees.
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