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How Employers Should Calculate The FMLA's 12-Month Period

Thatcher logo.jpgUnder the federal Family and Medical Leave Act, covered employees are entitled to take up to 12 workweeks of unpaid leave during a single 12-month period. The leave can be used to care for a personal medical condition, to care for certain family members' serious health conditions, to bond with a new child or to deal with emergencies related to a family member's active duty military service. More leave is available to care for a military family member's illness or injury.

Questions often arise about how that "single 12-month period" should be calculated. What does the law say is the best way to calculate it?

There are four different ways employers can calculate the 12-month period for FMLA purposes, and any of them is legally acceptable as long as you are consistent:

  • The calendar year
  • Any fixed period of 12 months, such as the fiscal year
  • 12 months as measured forward from the first date of the employee's FMLA leave (The employee's leave eligibility year begins on the first date of leave, with each day taken subtracted from the remaining weeks of leave)
  • A rolling 12-month period measured backward from the date an employee uses FMLA leave (When employees ask for leave, their eligibility is calculated based on how much leave they have taken in the last 12 months, counted from each leave date)

The calendar year and fixed date methods may be advantageous for employers who are largely concerned with ease of administration. Since the dates are fixed, they can be used for all employees. Leave usage is easy to track, without any need to count forwards or backwards.

The potential downside for this method is that it leaves open the possibility that two years' worth of leave could be stacked. If an employee takes the last 12 weeks of one year and the first 12 weeks of the next, they could receive 24 weeks of FMLA leave in a row. The company would have little right to limit leave under these circumstances, except in the case of key personnel.

Leave stacking is not possible under the forward- and backward-measuring methods. Further, these methods actually limit the amount of leave available to 12 weeks within a rolling 12-month period, so the leave burden on the employer is minimized.

The downside to these methods is that they are more difficult to calculate so they add to your administrative burden.

You can change your calculation method, but you would need to give your employees at least 60 days' notice. Additionally, the transition should not deprive employees of their full leave entitlement under the calculation method that is more favorable to them.

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