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This Week's Tip: FMLA 12-Month Rules
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
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This Week's Tip: FMLA 12-Month Rules
The FMLA guarantees eligible employees 12 weeks of leave in "any" 12-
month period. But how do you define that 12-month period, or what
happens if you don't designate a particular 12-month period?
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This Week's Tip: FMLA 12-Month Rules
You know that eligible employees can take up to 12 weeks of Family and
Medical Leave Act (FMLA) leave in a 12-month period. But, do you
know how that 12-month period is measured? Or, what happens if you
do not specify a particular 12-month period? The FMLA has very
specific requirements about the 12-month counting period, and if you do
not follow them, you may find that your organization is on the hook for
more leave than necessary.
* DOL Regulations Offer Four Options *
According to the regulations issued by the Department of Labor (DOL), a
covered employer may use one of four methods for determining the 12-
month period in which an eligible employee's FMLA leave entitlement
occurs. These methods are:
1. the calendar year;
2. any fixed 12-month period such as a fiscal year, a year starting
on an employee's anniversary date, or a year required by a state leave
law;
3. the 12-month period measured forward from the date an
employee's first FMLA leave begins; or
4. a rolling 12-month period measured backward from the date an
employee uses any FMLA leave. (See 29 C.F.R. §825.200(b).)
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Editor's Note regarding citations used in this article:
References to "C.F.R." refer to the Code of Federal Regulations, the
official government publication for federal regulations.
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Although the first three options may be easier to administer, they also
may allow employees to take leaves back-to-back. For example, these
options permit an employee to take 12 weeks of leave at the end of the
12-month period and an additional 12 weeks of leave at the beginning of
the next 12-month period. (See 29 C.F.R. §825.200(c).)
The advantage of the rolling 12-month period is that it eliminates the
potential for stacked leaves. An employee's leave entitlement is
determined each time leave is requested by looking back over the
immediately preceding 12-month period. For example, if an employee
takes four weeks of leave beginning February 1, 2003, four weeks
beginning June 1, 2003, and four weeks beginning December 1, 2003,
the employee would not be entitled to any additional leave until February
1, 2004. The employee would then be entitled to four weeks of leave
beginning on February 1, 2004, an additional four weeks on June 1, and
so on. 29 C.F.R. §825.200(c).
* Failure to Select Counting Period Can Result in More Leave *
If you do not select one of these four counting periods, the DOL
regulations state that the option that provides the most beneficial
outcome for the employee will be used. (See 29 C.F.R. §825.200(e).)
Thus, for example, suppose an employee uses 12 weeks of FMLA leave
though the end of one year and then requests additional leave on
January 1. If you have not designated how the leave year will be
calculated, the DOL or a court would likely choose the calendar year as
the appropriate counting period, since that would make the employee
eligible to take additional leave.
This is exactly what happened in Bachelder v. America West Airlines,
Inc., 259 F.3d 1112 (9th Cir. 2001). The employer in the case selected
the rolling 12-month period, but did not properly inform employees of its
choice. So, the Ninth Circuit Court of Appeals found that the company
had failed to meet the FMLA notification requirements. The court then
went on to impose a new counting period, the calendar-year method,
since it determined that such a calculation would be most favorable to
the employee.
* Changes to Counting Period Allowed *
Once you designate a method of calculating the 12-month period, you
may change it as long as you give employees 60 days' notice of the
change and they retain their full benefit of 12 weeks of leave. (See 29
C.F.R. §825.200(d)(1).)
As a general rule, you are required to apply the selected method
uniformly to all employees. An exception is available to multistate
employers. If your chosen method conflicts with a state family leave law,
you may apply the state method where necessary and still use the
chosen method for other employees outside of the state. (See 29 C.F.R.
§825.200(d)(2).)
Finally, in cases where the employer has not yet designated a counting
period, it must give 60 days notice of its intention, as described above.
(See 29 C.F.R. §825.200(e).)
* Set Period in Advance *
Clearly, it is to your advantage to designate the 12-month counting
period in advance. If you don't, you may find that your employees get to
take more leave than you intended. So, to avoid problems, you must
select a counting period and then properly notify employees about the
requirements in your FMLA policy and other related notices.
Subscribers to the Personnel Policy Manual and HR Policy Answers on
CD can find more information on setting the FMLA counting period in
Leaves of Absence, Chapter 703, note 22.
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