That’s one reason the statute and the U.S. Department of Labor’s (DOL) provide employers with several options for calculating how much leave employees are entitled to at any given time.
For example, employers can use the calendar method for determining leave. It’s the simplest method. 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 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.
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: Carl Thom worked for American Standard as a molder and had to have shoulder surgery. He asked for and received FMLA leave. He then lost his job when he didn’t return within the time period for which American Standard said he was eligible under the rolling method.
But Thom cried foul and sued.
He said American Standard never told him or other employees that it had chosen the rolling method. Because it hadn’t, he argued that he was entitled to the most generous calculation, which in his case was the calendar year method. Because Thom had taken leave late in the previous year, the rolling method cut his entitlement.
But using the calendar year method meant he had a full 12 weeks available.
The court agreed with Thom. Because American Standard never said which method it was going to use, it had to use the one that gave Thom the most time off. (Thom v. American Standard, No. 3:07-CV-46494, ND OH, 2008)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- When FMLA leave is denied, damages can add up fast
- Disabled employee always calling in sick?
- Head off problem employees' retaliation suits: Document all decision-making as it happens
- Warn managers and supervisors: You may be personally liable for discrimination!