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Calculating How Much FMLA Leave an Employee Has Available

As we all know, the Family and Medical Leave Act (FMLA) requires covered employers to provide eligible employees with 12 weeks of unpaid leave during a 12-month period. Employers are allowed to define the 12-month period any way they wish — much like they are entitled to define the seven-day period that comprises a workweek under the Fair Labor Standards Act (FLSA). Let’s explore the various methods for calculating the “FMLA year.”

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‘Fixed’ year method
When the FMLA was first passed, many employers simply chose to define the 12-month period of eligibility by the calendar year. However, employers soon learned that this method allowed employees to stack leave. For example, if an employee had a qualifying event on December 1, he would get leave in what was left of the calendar year (four weeks) and then another 12 weeks of leave once January 1 rolled around.

Using other fixed leave years, such as the fiscal year or an employee’s anniversary year, also resulted employees being able to stack their available leave. Thus, many employers began to use either a “rolling forward” or “rolling backward” method of defining the 12-month period.

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‘Rolling’ year method
Under the rolling forward method, if a qualifying event occurs on December 1, 2009, the employee is entitled to 12 weeks of leave until December 1, 2010 — regardless of the number of qualifying events that occur. Thus, if an employee uses four weeks for the December 1, 2009, qualifying event and has another qualifying event on April 1, 2010, he has eight weeks left for the new qualifying event. If the employee doesn’t have any additional qualifying events before December 1, 2010, he will have 12 weeks of leave available for any qualifying events that occur after that date.

In this example, if the employee’s next qualifying event after December 1, 2009, is December 15, 2010, he has 12 weeks of leave available for the December 15 qualifying event.

Even the rolling forward method of calculating the 12-month period allows for some stacking of leave, however. The only method that doesn’t allow for stacking — and therefore the one that’s most advantageous for employers — is the “rolling backward” method, which provides a snapshot of the 12-month period that changes daily. As each new day is added to the 12-month period, one day from 12 months ago is eliminated.

For example, assume that after a qualifying event occurs on December 1, 2009, the employer looks backward to determine how much FMLA leave, if any, the employee took from December 1, 2008, to December 1, 2009, and subtracts that time from the available 12-week entitlement. Thus, if the employee had used four weeks of leave between December 1, 2008, and December 1, 2009, he would have eight weeks available for a new qualifying event.

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Bottom line
You are required to inform employees of the method you use to determine their FMLA leave entitlement when you inform them of their FMLA rights. The U.S. Department of Labor’s (DOL) final FMLA regulations provide that when an employer fails to select a method, each employee taking FMLA leave is free to select the option most beneficial to him. You may subsequently select a method of calculation, but only after giving 60 days’ notice to all employees.

In addition, when you have chosen a method for calculating FMLA leave entitlement but then decide to change to another alternative, you are required to give at least 60 days’ notice of the change to all of your employees. Moreover, the transition must take place in such a way that employees retain their full 12 weeks of leave under whichever method affords them the greatest benefit.