Calculating Available Leave Under the FMLA

May 10, 2011, 2:26 PM

Regulations implementing the Family and Medical Leave Act (FMLA) explain that, except in the case of leave to care for a covered service member with a serious injury or illness, an eligible employee's FMLA leave entitlement is limited to a total of 12 workweeks of leave during any 12-month period. The regulations also explain that the employer is permitted to choose any one of four options for determining the "12-month" period.

Specifically, the employer may choose to use:

  • the calendar year;
  • any fixed 12-month "leave year" such as a fiscal year or a year starting on the employee's anniversary or hire date;
  • the 12-month period measured forward from the date of the employee's first FMLA leave; or
  • a "rolling" 12-month period measured backward from the date an employee uses any FMLA leave.
Each option has its benefits and complications. For example, the first two options provide simplicity and consistency, but may also enable an employee to take more than 12 consecutive weeks of leave. The third and fourth options eliminate this problem, but can be more complicated to manage.

Whatever method an employer chooses, it is crucial that the employer notify the employees of the method in its written FMLA policy. This is because the regulations provide that, if an employer fails to select one of the four options for measuring the 12-month period, the option that provides the most beneficial outcome for the employee will be used.

Therefore, review your FMLA policies to ensure that the method for calculating the 12-month period is clearly designated. In addition, keep accurate records of the dates that employees take FMLA leave. Finally, if you wish to change the method for calculating the 12-month period, be sure to follow the 60-day notice requirement that applies. --David J. Sullivan