The court rejected the school’s argument and sided with Spencer. It noted that the school’s FMLA policy failed to define “year” within the policy and, therefore, the employee gets to define it in his or her favor.

The court, in noting the Department of Labor’s FMLA regulations, stated that “an employer may chose to establish a ‘leave year’ for employees that is a fiscal year, calendar-year, or a ‘rolling’ 12-month period measured backward from the date an employee uses FMLA leave. If an employer ‘fails to select’ one of the options offered, then the option that provides the most beneficial outcome for the employee will be used.”

In this case, Spencer chose the “calendar-year approach” and properly claimed time off under the FMLA in 2004 and another 12 weeks in 2005.  Firing her on March 18th was short of her allowed 12 weeks and violated her FMLA rights.

1. Define “year” in your FMLA policy. It’s always best for the organization to define it and control the situation, rather than leave it up to employees (or the court). Check you FMLA policy ASAP to make sure the term is defined right in the policy.

2. Avoid “stacking” problems. Stacking means an employee takes off October, November and December…and then January, February and March for FMLA leave. That’s six months in a row. To avoid this problem don’t use the calendar approach.

3. Don’t use sundials. Courts use real calendars to determine the 12 weeks or 84 days. Don’t rely on any other method to count the time off. As a best practice, it’s best to have at least two people check and double check the calculations. The courts are clear that 11 weeks and 6 days just isn’t the same as 12 weeks.