Pick an FMLA leave calculation method, stick with it–and inform employees

The FMLA provides 12 weeks of leave per year, but employers have flexibility for determining when those 12 weeks start and end. Choose one of four possible calculations (see box below) and let employees know which one you’re using.

Otherwise, courts will use the one that gives employees the best deal.

Recent case: Allan MacFarland used two weeks of FMLA leave toward the end of the year. In January, he had a stroke. When he tried to return to work after 12 weeks, his employer terminated him, saying he was eligible for only 10 weeks of leave. The employer claimed it was using the rolling 12-month method to calculate leave.

MacFarland believed he had the full 12 weeks coming and sued.

The court sent the case forward for a trial. It told the employer it had to produce solid evidence that it adopted the rolling 12-month method and applied it to everyone. Unless employees clearly know about the choice, the court said, the method most advantageous for the employee applies. (MacFarland v. Ivy Hill, No. 09-CV-2246, ED PA, 2010)

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