Thewas created to allow employees time off to deal with their own serious health conditions or those of family members who need medical care. But the law carefully balances the rights of employees to keep their jobs while facing temporary hardships with the rights of employers to run their businesses.
That’s one reason the statute and the U.S. Department of Labor’s (DOL)give employers several options for calculating how much leave employees are entitled to at any given time. Most employers choose one of these two:
- The calendar method is the simplest. Under the calendar method, eligible employees who have met the FMLA’s required 12 months of service and 1,250 hours of work are entitled to 12 unpaid weeks during any calendar year. That means someone could take 12 weeks off ending on Dec. 31 and then immediately be eligible for another 12 weeks on Jan. 1.
- The rolling method is more complex. It allows employers to limit to a total of 12 weeks during the preceding 12 months. The rolling method would, for example, entitle someone who already had taken eight weeks in the last two months of a year to just four more weeks in the first 10 months of the following year. This method is more complicated because it requires a new calculation each time an employee requests FMLA leave.
The law provides two additional methods:
- One is based on any 12-month leave year, such as a fiscal year or a year starting with the employee’s anniversary date.
- Another method uses the 12-month period going forward from the date an employee first uses FMLA leave.
Which method should your organization select? That depends on how much record-keeping you want to do.
But one thing is certain: If you don’t select a method and let employees know, the DOL says you must use the one most beneficial to the employee. That may mean doing four calculations every time an employee wants FMLA leave.
Recent case: Annette Gardner took frequent FMLA leave—until she was fired for excessive.
Her employer used the rolling method to determine FMLA eligibility. Under that method, each time an employee takes FMLA leave, the remaining leave entitlement is the balance of the 12 weeks that wasn’t used in the immediately preceding 12 months.
Gardner regularly asked for updates and got them. Then her husband had brain surgery and she again asked how much FMLA leave she had coming. This time, she received no response. Shortly after, she was fired for exceeding her FMLA leave. Gardner sued, alleging she should have been notified because she would have made other arrangements if she knew she was out of FMLA leave and could be fired.
The court said the case should go to a jury. (Gardner v. Great Lakes Cheese, No. 1:10-CV-183, ND OH, 2011)
Advice: Never ignore an employee’s request for a tally of how much FMLA leave she has used and still has available. Otherwise, you could end up in court if the employee is terminated for exceeding her allotment.
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