As a new year is beginning, employers covered by the federal Family Medical Leave Act are reminded to assess the way in which the leave is applied.   This is particularly important for employers who use the calendar year method, since under that method an employee’s entitlement to FMLA will start over again as of January 1.

Employers can select from one of four methods to establish the 12-month period applied to employees taking FMLA leave.    They are:

(1) the calendar year:  this is the 12-month period that runs from January 1 through December 31;

(2) any fixed 12-months:  this can be any 12-month period, i.e. based on a fiscal year, the employee’s anniversary date, or a 12-month period required by state law;

(3) the 12-month period measured forward: this is the 12-month period measured forward from the first date an employee takes FMLA leave.   So, under this method, the next 12-month period would begin the first time FMLA leave is taken after completion of the prior 12-month period; or

(4) a “rolling” 12-month period measured backward: this is the 12-month period measured backward from the date an employee uses any FMLA leave.   Under this method, each time an employee takes FMLA leave, the remaining leave entitlement would be the balance of the 12 weeks which has not been used during the immediately preceding 12 months.

Further explanation and examples of all methods can be found on the Department of Labor’s website, Fact Sheet #28H.   That fact sheet further provides the following.

With few exceptions, an employer may choose which of the four methods to establish the 12-month period as long as the method is applied consistently and uniformly for all employees.   An employer may also change the method of calculating the 12-month period but must first give all employees at least 60 days’ notice of the intended change and the transition must take place in such a way that the employees retain the full benefit of their leave entitlement under whichever method affords the greatest benefit to the employee.

If an employer fails to select one of the 12-month period methods, the employer must use the 12-month period method that is the most beneficial to the employee.

This is a good time to review your policies to ensure that you are using the calculation method that is the best fit for your company and also to ensure you are calculating the 12-month period correctly.

Anne-Marie L, Storey, Attorney at Law, Rudman Winchell
Anne-Marie Storey, Esq
Rudman Winchell


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