Every once in awhile, I find myself counseling an employer with either no FMLA policy or one completely lacking any meaningful details. Often, these policies fail to include key provisions to protect against liability.
Take, for instance, the FMLA 12-month period.
As employers are aware, an otherwise eligible employee is entitled to 12 weeks of FMLA leave in a 12-month period. Notably, this “12-month period” is defined by the employer. What happens when an employer fails to disclose the 12-month period in its FMLA policy? They may end up like the Illinois Department of Corrections (IDOC).
IDOC apparently maintained an FMLA policy, but it failed to inform employees how the 12-month FMLA period was defined. When that happens, the 12-month option that provides the most beneficial outcome for the employee is used. IDOC learned this the hard way. One of its employees, Mike, took and seemingly exhausted FMLA leave. He later was terminated for three unexcused absences.
Finding that IDOC did not inform employees of what it was using as the 12-month FMLA period, the court determined that the “most beneficial” outcome should be used for Mike, effectively earning him back two weeks of FMLA leave that he could have used in this instance. Caggiano v. Illinois Dept. of Corrections (pdf)
Ouch. That stings.
How Many Ways are There to Count to 12?
Let’s use IDOC’s loss as an opportunity to discuss what 12-month FMLA period you should use for your workforce. The FMLA regulations allow employers to utilize any one of four different methods to calculate the amount of FMLA leave an employee uses within a 12-month period. Per the regulations, an employer may choose any one of the following 12-month periods:
- The calendar year
- Any fixed 12-month “leave year,” such as a fiscal year, a year required by state law or a year starting on an employee’s “anniversary” date
- The 12-month period measured forward from the date any employee’s first FMLA leave begins
- A “rolling” 12-month period measured backward from the date an employee uses any FMLA leave
Pros and Cons in Choosing a Particular 12-Month Period
Employers may select any one of these four counting methods, so long as the method is applied consistently and uniformly for all employees. Once the employer chooses a particular 12-month period, however, it cannot change to another 12-month period without first giving all employees at least 60-days’ notice of the change. 29 CFR 825.200(d)(1) As I referenced above, if the employer fails to select one of the above 12-month periods, or if the employer has changed the method but it is within the 60-day window, the employer must use the 12-month period that provides the most beneficial outcome to that employee.
Clearly, there are pros and cons with each of these four methods. But one method stands out above the rest: the “rolling” 12-month period measured backward from the date an employee uses any FMLA leave.
Let me explain.
Methods One and Two
The first two methods are materially the same in that they set a fixed point in time by which to start calculating FMLA leave. Although these two options are by far the easiest to administer, they allow for employees to “stack” 12-week FMLA periods back to back, thereby potentially providing more leave than necessary. “Stacking” means taking FMLA leave for a subsequent FMLA leave year right after leave taken during the previous year.
Take Jane, for example. Under her employer’s “calendar year” method, Jane takes four weeks of FMLA leave the first time on February 1. Later in November, she takes another eight weeks of leave, which takes her through the end of the calendar year. In theory, beginning on January 1, Jane could utilize another 12 weeks of FMLA leave. In this example, this method of calculation allows Jane a total of 20 consecutive weeks of FMLA leave. (It could have been worse — Jane could have taken 12 weeks at the end of the year and another 12 at the beginning of the following calendar year, for a total of 24 consecutive workweeks of FMLA leave.) For employers seeking a continuity of business operations, this unintended result might be a difficult pill to swallow.
The third method is not entirely different from the two above, but it offers a marginally better balance between protecting the continuity of businesses operations and ease of administration. Under this method, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken. From an administrative perspective, this is easier to understand: the employee begins leave on February 1, so the employee’s leave year begins on February 1. However, this method does not avoid the “stacking” conundrum identified above. Here, employers cannot avoid a situation where an employee takes FMLA leave later in the FMLA leave year, which is followed consecutively by as many as 12 weeks taken at the beginning of the following FMLA year (on February 1).
Notably, under the FMLA regulations, employers must use this method when calculating leave for an employee who is caring for a covered servicemember with a serious injury or illness. 29 C.F.R. 825.200(f)
The most common method (but clearly the most confusing) that employers use is referred to as the “rolling” method. 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. Therefore, 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.
The regulations provide a fairly straightforward example of how the employer would calculate leave using this method:
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. Accordingly, employers using the rolling 12-month period may need to calculate whether the employee is entitled to take FMLA leave each time that leave is requested, and employees taking FMLA leave on such a basis may fall in and out of FMLA protection based on their FMLA usage in the prior 12 months. For example, in the example above, if the employee needs six weeks of leave for a serious health condition commencing February 1, 2009, only the first four weeks of the leave would be FMLA-protected.
When using the rolling calendar or look-back period, an employee’s FMLA leave remaining in his or her 12-week FMLA leave entitlement literally can change daily, since the employer must add days (or hours) used upon the 12-month anniversary of an FMLA absence. Although this method can be confusing to administer (such as calculating the leave available from different FMLA dates for each employee, and to do so each time FMLA leave is requested), it is the only method available under the regulations to ensure that an employee will not take a block of FMLA leave for more than 12 consecutive weeks. Implementing this method is an employer’s best defense against FMLA abuse, and it tends to save costs in the long run. Moreover, it discourages employees’ use of extended periods of leave across consecutive 12-month periods. When balanced against the others, this method often is the best choice for employers.
Work with your employment counsel to ensure you’re using an FMLA year that meets your operational and business needs.
Don’t make the same mistake IDOC did above. Regardless of what 12-month FMLA period you choose, make sure it is clearly defined in your FMLA policy.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing 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 firm’s 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 (2011-2014) 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.