Clarify how you count FMLA year, and put entire policy in handbook
When establishing or changing your Family and Medical Leave Act (FMLA) policy, don’t skimp on paper. Spread the policy far and wide. Rule of thumb: If you mention FMLA leave in your handbook, include your entire FMLA policy. Don’t rely on references to the policy outside the book, and don’t attach or staple the policy separately.
Also, be clear in your FMLA policy how you count a “measuring year.” Employees can take 12 weeks of FMLA leave during each 12-month period. But the law lets you choose among four methods for calculating the applicable 12-month period, including a calendar year and the rolling method. If you fail to designate a measuring-year method properly, you must give employees the most generous option available.
Recent case: An employer decided to calculate employee FMLA leave using the “rolling method,” that is, a 12-month period measured backward from the date an employee uses any FMLA leave. It gave each employee a copy of the new policy and posted it on the employee bulletin board.
The problem arose when an employee took additional leave after she had already used up her 12 weeks of FMLA leave calculated by the rolling method. When she didn’t return to work, she was fired for absenteeism.
She sued under the FMLA, and a court let her case proceed. Despite the employer’s education efforts, the court said it didn’t properly choose the rolling method and communicate it to employees. Why? It didn’t put the new policy in the company handbook. As a result, the court applied the calendar-year method, the most favorable to employees, which meant the worker was still eligible for leave at the time the employer denied it. (Dodaro v. Glendale Heights, No.01C6396, N.D. Ill., 2003)
FMLA: 4 ways to count 12 months
1. The calendar year.
2. Any fixed, 12-month “leave year,” such as your fiscal year, a year required by state law or a year that starts on the employee’s anniversary date.
3. The 12-month period measured forward from the date an employee’s first FMLA leave begins.
4. A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.
What’s best? Employers prefer the rolling 12-month period, because it’s the only method that prevents back-to-back 12-week leaves. The most favorable option for employees is the calendar-year method.
Note: If you decide to change your method, you must first give employees 60 days’ notice.