The FMLA was 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 U.S. Department of Labor's (DOL) FMLA regulations (29 CFR § 825.200) provide employers with several options for calculating how much leave employees are entitled to at any given time.
Eligible employees can take up to 12 weeks of unpaid leave during a 12-month period. According to the regulations, employers are permitted to choose any one of the following methods for measuring the "12-month period” in which the 12 weeks of leave entitlement occurs.
The FMLA regs are complex and the consequences of noncompliance are severe, for your company and even for you personally. Good thing there's a simple solution: Get the FMLA Compliance Guide: Practical Advice on Managing Family and Medical Leave.
1. The calendar year
The calendar method is the simplest one. 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. The downside: This means someone could take 12 weeks of FMLA leave ending on Dec. 31 and then immediately be eligible for another 12 weeks starting on Jan. 1. This "stacking” of leave makes the calendar-year option unpopular.
2. Fixed 12-month year
This method is based on any fixed 12-month "leave year,” such as the employer's fiscal year or the employee's anniversary date or a year required by state law.
3. 12 months going forward
This system measures the 12-month period going forward from the date of the employee's first use of FMLA leave.
4. Rolling 12-month calendar
The "rolling” 12-month method measures backward from the date an employee first takes FMLA leave. This rolling method is more complex, but also more popular. That's because it allows employers to limit FMLA leave to a total of 12 weeks during the preceding 12 months.
The rolling method would, for example, entitle someone who had already taken eight weeks in the last 12 months to just four more weeks. This method is more complicated because it requires a new calculation each time an employee requests FMLA leave. But it does prevent the possibility of someone taking 24 weeks of consecutive 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 method most beneficial to the employee. That may mean doing four calculations every time an employee wants FMLA leave. So choose a method and use it consistently.
Want to change your calendar method? The DOL says:
"An employer is also permitted to change to another alternative method so long as a 60-day notice is given to all employees, and the full benefit of 12 weeks of FMLA leave under whichever alternative method yields the greatest benefit during the 60-day transition period is retained by all employees. At the conclusion of the 60-day transition period, the employer may implement the new alternative method selected.” (29 CFR §825.200)
Note: Military caregiver leave regulations enacted in 2009 entitle employees to up to 26 weeks of leave per service member, per injury, in a single 12-month period, beginning on the date the leave begins. This effectively creates a second "leave year” for employers to track.
It's easy to stay in compliance if all you do is grant leave whenever anyone asks for it. But what does that do for your company's productivity? And for the morale of the people still on the job and working harder than ever?
The FMLA Compliance Guide gives you the knowledge and confidence to do what's required and no more. The employee sitting across your desk and demanding FMLA leave won't be in charge; you will. Get your copy here.
Allowable reasons for FMLA leave
Except in the case of leave to care for a covered service member with a serious injury or illness, U.S. Department of Labor regulations say an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period for any one, or more, of the following reasons:
1. The birth of the employee's son or daughter, and to care for the newborn child
2. The placement with the employee of a son or daughter for adoption or foster care, and to care for the newly placed child
3. To care for the employee's spouse, son, daughter or parent with a serious health condition
4. Because of a serious health condition that makes the employee unable to perform one or more of the essential functions of his or her job
5. Because of any qualifying exigency arising out of the fact that the employee's spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) in support of a contingency operation.
We've made the FMLA Compliance Guide complete because with any FMLA issue, military or not, the stakes are high and the burden of compliance is yours. A worker requesting leave does not have to mention FMLA. It's up to you to determine whether the requested leave falls under FMLA, and to provide the proper notifications within specified time periods.
If a worker successfully files a lawsuit against your company, you could end up paying back wages and benefits, plus the employee's attorney fees and court costs – or double the entire amount if a court deems your violations were willful. Plus your own attorney fees on top of that!
And that's just the damage to your company. In some cases, you can be held personally liable when an employee doesn't get the leave he or she is entitled to under the law. Yes, we're dealing with the law here. And the law is unforgiving.
Order the FMLA Compliance Guide now. Scan it for a quick overview. Consult it in depth when you have a question on a specific topic. Make sure the next FMLA decision you make is the right decision.
Get your copy today!
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- FMLA and termination for failing to submit certification
- USERRA: Know your duty to returning disabled soldiers
- The case of the disappearing employee, whose leaves leave us struggling
- When the writing is on the wall: Court finds employee justified in believing she was fired