When an employer uses the rolling 12-month period, each time an employee takes FMLA leave, the remaining leave entitlement is the balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if the employee in your inquiry requested FMLA leave to begin on September 1, you would subtract from 12 weeks all the FMLA leave she used from September 1st to the previous August 31st (from 8/31/14 to 9/1/15). Any FMLA leave she used prior to 8/31/14 is not counted against her leave entitlement.
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How do you calculate whether an employee has exceeded the FMLA leave 12-week limit using a rolling 12-month period?
Additional information is available on HR.BLR.com in the online FMLA Compliance Guide. Copied below for your convenience is an example of the 12-month rolling period, taken from the section on Qualifying Reasons for FMLA Leave:
Example of rolling method. If an employee has taken 8 weeks of leave during the past 12 months, an additional 4 weeks of leave could be taken. If an employee used 4 weeks beginning February 1, 2015, 4 weeks beginning June 1, 2015, and 4 weeks beginning December 1, 2015, the employee would not be entitled to any additional leave until February 1, 2016.
However, beginning on February 1, 2016, 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) 1 additional day of FMLA leave each day for 4 weeks, commencing February 1, 2016. The employee would also begin to recoup additional days beginning on June 1, 2016, and additional days beginning on December 1, 2016.
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. As demonstrated in the example above, if the employee needs 6 weeks of leave for a serious health condition commencing February 1, 2016, only the first 4 weeks of the leave would be FMLA-protected.
If any employee took 12 weeks of FMLA commencing June 1, 2016 and their employer used a rolling calendar year, when would that employee be eligible for additional FMLA if needed for another event?
If they took all 12 weeks consecutively on June 1, 2016 they would be eligible again on June 1, 2017. A day would roll off day at a time. June 1 they would have one day available to them, on June 2nd 2 days on June 3rd 3 days. So essentially they would have 12 weeks to use from June 1st 2017.