Ask the Expert: Employee ‘Exhausts’ FMLA, Now Spouse Has Serious Health Condition

Question: If an employee has exhausted 12 weeks of FMLA for himself in the calendar year but now has a legal spouse with a serious health condition, can he take an additional 12 weeks?

Answer from the experts at HR.BLR.com:

Thank you for your inquiry regarding an employee who has exhausted FMLA leave.

The answer to your question depends on the method your company uses to track and calculate Family and Medical Leave Act (FMLA) leave.  If the employee took leave under the federal FMLA for his own serious health condition, and your organization uses a calendar year to calculate your employees’ FMLA leave entitlement, then the employee may take an additional 12 weeks of leave for his spouse’s serious health condition under the FMLA beginning January 1, 2017, assuming he still meets the eligibility requirements (i.e., has worked for the employer for at least 12 months (not necessarily consecutively); has worked for the employer for at least 1,250 hours in the previous 12 months; and works at or is assigned to a worksite that has 50 or more employees or which is within 75 miles of employer worksites that taken together have a total of 50 or more employees).

Many employers will use a different method other than the calendar year to track and calculate FMLA leave entitlement in order to limit back-to-back leaves under the FMLA. The federal Department of Labor (DOL) regulations implementing the FMLA allow employers to use any one of four different methods to determine the 12-month period for counting and tracking leave.

Employers may choose any one of the four methods, but DOL regulations say the method selected must be used consistently and uniformly for all employees nationwide.

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

• The calendar year;
• 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);
• A 12-month period, measured forward, that begins on the date an employee first starts the FMLA leave; or
• A “rolling” 12-month period, measured backward, from the date an employee last used any FMLA leave.

A primary advantage shared by the first two methods is that recordkeeping and administration may be easier.  This is because the methods used are consistent for all employees and may easily be linked with other systems, such as attendance, that are on the same schedule.

A major disadvantage to employers that use the first three methods is that each allows “stacking” of leave time by employees.  This means that employees theoretically could take 24 weeks in a row; for example, the last 12 weeks of a calendar year and the first 12 weeks of the next calendar year.  Such a protracted leave is not allowed under the fourth method—rolling calculation of leave.  This method avoids any possibility of stacking, but may be more difficult to administer.

The following information is from the DOL’s regulations (29 CFR 825.200(c)) and provides an example of the “rolling” 12-month period:

Under the “rolling” 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months. For example, if an employee has taken eight weeks of leave during the past 12 months, an additional four weeks of leave could be taken.

If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, 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) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009.

Accordingly, 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. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA protected.

We hope this information is helpful and again thank you for your question.