Family And Medical Leave: Court Says Employers Must Notify Workers How “12-Month Period” For Leave Entitlement Will Be Calculated; 3 Practical Steps

Employees who qualify for federal family leave may take up to 12 workweeks of leave within a 12-month period. An employer may choose one of four methods to measure the 12-month timespan, such as a calendar year or a rolling 12-month period. Now, a new ruling from the federal Ninth Circuit Court of Appeals demonstrates why it’s important for employers to select a formula for calculating available leave in advance and notify employees before someone goes out on family leave.

Calculating The 12 Months

Under the federal Family and Medical Leave Act and the California Family Rights Act, employers may choose one of four methods to measure the 12-month period for purposes of determining the amount of family leave an employee may take. Some methods can be more favorable to employees than others. The approved methods include:

  1. the calendar year;


  2. any fixed 12-month-leave year, such as a company fiscal year or a year starting on an employee’s anniversary date;


  3. the 12 months measured forward from the date an employee’s first family leave begins; or


  4. a rolling 12 months measured backward from the date an employee starts to use any new family leave.

Our HR Management & Compliance Report: How To Comply with California and Federal Leave Laws, covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional. Learn the rules for pregnancy and parental leaves, medical exams and certifications, intermittent leaves, required notices, and more.

Note that depending on the circumstances, the different methods can have very different outcomes, as they did in this new case.

Employee Fired For Excessive Absenteeism

The case involved Penny Bachelder, an America West Airlines passenger service supervisor at Phoenix Sky Harbor Airport. She took five weeks of medical leave in 1994 and a three-month maternity leave beginning in June 1995. These absences were protected by the FMLA.

In January 1996, her supervisor warned her that her attendance record was poor, citing her 1994 and 1995 FMLA-covered absences and other occasions when she called in sick.

In February 1996, Bachelder was out three weeks for medical reasons. Then, when she called in sick two months later to care for her ill baby, she was fired. The termination letter said she was discharged for being absent 16 times since being counseled in January 1996 and also mentioned some minor performance issues.

Lawsuit Erupts

Bachelder sued, claiming America West impermissibly considered her protected family leave absences in deciding to terminate her. But America West said the 1994 and 1995 protected absences played no part in its decision. And the airline argued that Bachelder’s February 1996 absences were not protected because the company used the retroactive rolling method for determining the 12-month family leave period. Under that method, the company claimed, Bachelder exhausted her full annual allotment of family leave as of June 1995, when her maternity absence began. The company claimed she wasn’t entitled to more leave until June 1996, 12 months later. A trial court agreed with America West, and Bachelder appealed.

Employer Impermissibly Considered Protected Absences

In overturning the decision, the Ninth Circuit explained that the rule that allows employers a choice of calculating methods for the 12-month period also requires employers to notify employees in advance of the method the employer will use. You can do this either in an employee handbook or in a separate family leave policy. If the employer doesn’t properly notify employees or fails to select a method, the formula that’s most beneficial to the employee will be used.

The court ruled that language in America West’s employee handbook stating that employees were entitled to 12 weeks of leave within “any 12-month period” didn’t put employees on notice that the rolling method would be used. Because the company didn’t fulfill its notice obligation, Bachelder was entitled to rely on the calendar-year method, which was most advantageous to her. Under that approach, she began 1996 with a fresh bank of family leave, so her February 1996 absences were protected. And, the court ruled, the company violated the FMLA by considering these absences in its decision to terminate her. Having decided in Bachelder’s favor, the court returned the case to the lower court to determine her damages.

3 Practical Steps

Here are some measures you can take to avoid problems:

  1. Choose a calculation method. How the 12-month period is determined can have significant ramifications. For example, if the period runs on a calendar or fiscal-year basis, an employee could be entitled to two 12-week leaves in a short timespan. A rolling-back method would prevent such stacking of leave time.


  2. Notify employees of your formula. Include the notice in your employee handbook or, if you don’t have one, in a separate written notice to employees. Clearly spell out the method you have selected and include an example of how it works. Notify employees if you change your calculation method. These notice obligations are separate from your obligation to post federal and state family leave posters in the workplace.


  3. Don’t consider FMLA-protected absences as a basis for discipline. The Ninth Circuit emphasized that it is illegal to consider family leave absences as a negative factor in employment decisions. And you can’t count protected time off under a “no-fault” attendance policy.

Keep in mind that under California law, employees may not take family leave for pregnancy-related disabilities since there is a separate pregnancy leave law that allows a woman to take up to four months of leave for disabilities due to pregnancy or childbirth. This means that in addition to 12 weeks of family leave to care for a newborn child, a worker could take more time off—as much as 29 weeks of disability leave and family leave combined.


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