Leave Policy/Compliance

FMLA Notice Requirements: Calendar and Holiday Issues

In our last installment, we covered how far in advance an employee must provide notice to his or her employer of the need for Family and Medical Leave Act (FMLA). In this article we’ll cover calendar and holiday issues regarding leave.

You have flexibility in choosing a calendar method for your organization to follow in keeping track of employee use of FMLA leave other than military caregiver leave. (As discussed in an earlier article, however, the calendar for military caregiver FMLA leave begins on the first day that an employee goes on leave to care for a covered service member.)

You may choose one of four calendar types for tracking nonmilitary caregiver FMLA leave. If you don’t pick a calendar-year method, the U.S. Department of Labor’s (DOL’s) regulations state that the calendar year that is most advantageous to the employee will be applied.

The methods for calculating the FMLA 12-week limit may be based on:

  1. The calendar year;
  2. Any fixed 12-month period (such as a fiscal year, year required by state law, or year that begins with an employee’s anniversary date);
  3. A 12-month period, measured forward, that begins on the date an employee first starts the FMLA leave; or
  4. A “rolling” 12-month period, measured backward, from the date an employee last used any FMLA leave.

Fixed-year calendars

Two methods for tracking leave (other than military caregiver leave) involve the use of a fixed leave year. Under the calendar year method, employees are entitled to 12 weeks of leave each calendar year. This is easy to administer but allows employees to stack leave at the end of one year and the beginning of the next.

The second fixed-year method involves the use of any fixed 12-month period, such as a fiscal year or a year beginning on the employee’s anniversary date. Both fixed-year methods also have the drawback that they allow employees to piggyback leave at the end of one year and the beginning of the next to obtain—potentially—24 weeks off in a row. In addition, most employers find that using each employee’s anniversary date is unnecessarily complicated.

Variable or rolling methods

In order to minimize or avoid the stacking of leave altogether, many employers prefer one of the variable leave years.

Under a forward-measured leave year, employees are entitled to 12 weeks of leave in the 12-month period that follows the first date they take FMLA leave. Once this 12-month period has passed, the employee will be entitled to 12 weeks of leave starting on the first day he takes FMLA leave again. This is the same method that employers are required to use for military caregiver leave.

Under the rolling method, employees are entitled to 12 weeks of leave in the 12 months prior to the date they use any FMLA leave. Here’s how it works: On any given day, look backward 12 months. The employee’s FMLA entitlement is the difference between 12 weeks and any FMLA leave she has taken in the past 12 months.

Choosing a leave year

A particular calendar method may offer you strategic advantages. Many employers, for example, choose the rolling calendar because it helps to prevent “stacking” of FMLA leave. However, a fixed-calendar-year method allows employers to redetermine an employee’s eligibility for FMLA under the hours-worked criterion on a fixed date once a year.

Holidays during leave

Regarding holidays, the FMLA regulations clear up what had been a sticking point for many employers—namely, whether and when to count a holiday as part of an employee’s FMLA leave. Under the FMLA regulations, a holiday that falls during a full week of FMLA leave counts as FMLA leave. But if an employee takes FMLA leave in increments of less than 1 week, the holiday doesn’t count as FMLA leave unless the employee was “otherwise scheduled and expected to work on the holiday.”

If for some reason the employer’s business activity has temporarily ceased and employees generally are not expected to report for work for 1 or more weeks (e.g., a school closing of 2 weeks for the Christmas/New Year holiday or the summer vacation or an employer closing a plant for retooling or repairs), the days on which the employer’s activities have ceased do not count against the employee’s FMLA leave entitlement.

We will cover how to calculate leave entitlement in our next installment.