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FMLA Counting Methods

As we begin rolling through the year 2017, it is important to verify your organization is monitoring FMLA leave properly. The Family & Medical Leave Act (FMLA) grants eligible employees, to take up to 12 weeks of unpaid leave during a 12-month period. How you choose to calculate that 12 month period will determine at what point an employee would be eligible again for FMLA.

Employees are eligible for leave if they have worked for their employer at least 12 months, a minimum 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. The U.S. Department of Labor, who regulates the FMLA under Section 29 CFR § 825.200, permits employers to choose any one of the following methods for measuring the “12-month period” in which the 12 weeks of leave entitlement occurs:

(1) The calendar year. The good news: this is the simplest method. Under the calendar method, eligible employees are entitled to 12 unpaid weeks during any calendar year. The bad news: this means an employee could take 12 weeks of FMLA leave ending on Dec. 31 and then immediately be eligible for another 12 weeks staring on Jan. 1. This method of being able to “stack” leave makes the calendar-year option very unpopular.

(2) Any fixed 12-month “leave year,” such as a fiscal year or the employee’s “anniversary” date, or a year required by state law; 

(3) The 12-month period measured forward from the date any employee’s first use of FMLA leave; or

(4) A “rolling” 12-month period measured backward from the date an employee first takes FMLA leave. This rolling method is more complex, but tends to be the more popular choice.  It allows employers to limit FMLA leave to a total of 12 weeks during the preceding 12 months. This method is more complicated because it requires a new calculation each time an employee requests FMLA leave. But it does prevent the possibility of someone taking 24 weeks of consecutive FMLA leave.

If you have decided to change your FMLA Counting Method, the DOL allows you to do so with 60 day notice to all employees.

“An employer is also permitted to change to another alternative method so long as a 60-day notice is given to all employees, and the full benefit of 12 weeks of FMLA leave under whichever alternative method yields the greatest benefit during the 60-day transition period is retained by all employees. At the conclusion of the 60-day transition period, the employer may implement the new alternative method selected.” (29 CFR §825.200)

Most important to note; if you do not select a method for counting FMLA and inform employees properly, the DOL explains you must use the method most beneficial to the employee. This could potentially mean calculating each method for every FMLA request to determine which favors the employee most. It is important to use consistency and administer the same counting method for each employee’s use.

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EAF provides information about current developments in labor and employment law. This information is intended for educational purposes only and should not be considered legal advice. Questions requiring legal advice should be addressed to the attorney of your choice. EAF members may be able to obtain a legal interpretation through our FREE Legal Hotline.