Wednesday, February 24, 2010

Calculating the rolling 12-month FMLA leave entitlement

As I’ve previously discussed, the FMLA allows for 4 different ways for employers to calculate its employees’ 12-week leave entitlement:

  1. Based on a calendar year.
  2. Based on some other defined and fixed 12 month period.
  3. Based on the 1st day an employee uses FMLA leave.
  4. A rolling 12-month period, measured backward from the date an employee uses any FMLA leave.

There is no doubt that for employers the last option – the rolling 12-month period – is both the administratively burdensome and the most advantageous.

Under this “rolling” 12-month period, each time the employee takes FMLA leave, the remaining leave entitlement is the balance of the 12 weeks that has not been used during the immediately preceding 12 months. The FMLA’s regulations provide some insight into how this works in practice:

For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken. If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.

Choosing the rolling 12-month period will add some administrative burden to your FMLA management, but you will be repaid by the fact that employees cannot double-dip by taking more than 12 weeks of contiguous leave because there should not be an overlap of leave years.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or