While nearly all of you are reading up on the CDC’s latest guidance allowing vaccinated folks to shed their masks inside and out, we’re getting back to the basics here on the FMLA Insights blog.
A few of my clients have been grappling with how and when an employee recoups their FMLA leave entitlement in a new FMLA leave year after the employee has used FMLA leave throughout the year.
Such a common issue, and it can be confusing.
When tackling this issue, we first must confirm which of the four 12-month FMLA periods the employer is using. Since the far majority of employers use a rolling FMLA year, let’s assume for now that we are using a rolling year. Under the “rolling” method, known also in HR circles as the “look-back” method, the employer “looks back” over the last 12 months, adds up all the FMLA time the employee has used during the previous 12 months and subtracts that total from the employee’s 12-week leave allotment. When calculating an employee’s available FMLA leave, the employee’s remaining available balance is 12 weeks minus whatever portion of FMLA leave the employee used during the 12 months preceding that day.
Ok, Jeff, but back to the question: When does FMLA leave already taken roll back on for the employee to use again in a new FMLA year?
If we first look to the FMLA regulations, we’ll find this is one of the few instances in the world of FMLA where the rules actually lead us to a clear cut answer, and it does so with a fairly straightforward example:
If an employee used four weeks beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008, the employee would not be entitled to any additional leave until February 1, 2009. However, beginning on February 1, 2009, the employee would again be eligible to take FMLA leave, recouping the right to take the leave in the same manner and amounts in which it was used in the previous year. Thus, the employee would recoup (and be entitled to use) one additional day of FMLA leave each day for four weeks, commencing February 1, 2009. The employee would also begin to recoup additional days beginning on June 1, 2009, and additional days beginning on December 1, 2009. 29 CFR 825.200(c)
The answer: Here, the employee begins recouping time on February 1, 2009 (a new 12-month FMLA period) in the same manner and amounts it was used the previous year.
But what if the employee is on a continuous leave at the time a new FMLA leave year begins? Let’s use the example from above: the employee used four weeks of leave beginning February 1, 2008, four weeks beginning June 1, 2008, and four weeks beginning December 1, 2008. Then, the employee takes a Company-authorized ADA leave beginning on January 15, 2009 for another six weeks.
Does the employee begin to recoup FMLA leave when the calendar turns to February 1, 2009, even though the employee was on a leave of absence at the time the new FMLA year began? In a word, yes. The employee need not be actively at work to obtain FMLA leave in a new year. The FMLA entitlement begins rolling back on as of February 1, 2009, so the period of time between February 1, 2009 and when his leave ends on February 28, 2009 is newly-recouped FMLA leave in the new FMLA year.
What about the Other Methods?
If you’re still with me, let’s turn to the other 12-month methods.
Does the analysis change if the employer uses a calendar year or fixed FMLA year? It does in the sense that the employee recoups all 12 weeks of FMLA leave at the beginning of a calendar year or fixed year. And they recoup the time even though they already may be on a leave of absence at the turn of the year.
Similarly, under the look-forward method, an employee is entitled to 12 weeks of FMLA leave during the year beginning on the first date FMLA leave is taken. After that 12-month period ends, a new one begins upon the first instance of FMLA leave in that new year.
Easy, yes? Who needs life-changing CDC guidelines when we can feast on riveting FMLA calculations all day long, amirite?
Jeff Nowak is a Partner at the law firm of Littler Mendelson and has been named as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.